SHAIK RASOOL Vs. A RAMESH

JUDGEMENT

(1.) This appeal under sec. 173 of the Motor Vehicles Act, 1988 is filed by the appellant/ claimant impugning the order dtd. 31/5/2012 of the learned Chairman, Motor Accident Claims Tribunal - Cum - IV Additional District Judge, Kurnool in MVOP.No.615 of 2009.

(2.) The following facts are required to be noticed: Sri Shaik Rasool aged 32 years was a mason by profession. On 27/1/2009, he was raiding a motor cycle along with a pillion rider and at about 08.30 pm at Banaganapalli to Bethamcherla road, a jeep bearing registration No. AP 04 U 2396 came in the opposite direction at high speed and was driven by its driver rashly or negligently and it dashed the motor cycle and the bike riders fell down and the wheels of the jeep ran over the right leg of Sri Shaik Rasool which led to amputation of right leg up to knee. As against the driver of the offending jeep, Cr.No.11 of 2009 was registered at Banaganapalli Police Station/Ex.A1 and after due investigation, a charge sheet was laid in C.C.No.186 of 2009 on the file of learned Judicial Magistrate of the First Class, Banaganapalli/ Ex.A3 and eventually after trial, the offending driver was convicted as evidenced by a copy of the judgment/ Ex.A4. The injured also suffered other injuries apart from amputation of his leg and he was treated at Government General Hospital, Kurnool where the surgery was conducted and he was an inpatient from 28/1/2009 to 13/4/2009 for nearly three months. Sri A.Ramesh being owner of the offending jeep got the jeep insured with United India Insurance Company Limited, Kurnool. Seeking compensation of Rs.5,50,000.00 in terms of Sec. 166 of the Motor Vehicles Act, 1988, the injured laid his claim in MVOP.No.615 of 2009 before learned Chairman, Motor Accidents Claims Tribunal - cum - IV Additional District Judge, Kurnool. R1/ owner of the offending jeep did not choose to contest. R2/ Insurance company filed a counter denying all the facts narrated in the claim petition and contended that the accident was out of rash or negligent driving of the motor bike by the claimant and the driver of the offending jeep did not have valid and effective driving licence and that the claim made was excessive. On the above rival pleadings, the learned claims tribunal settled the following issues for trial.

(3.) In support of the claim, claimant testified as PW.1 and the doctor who treated him testified as PW.2. Exs.A1 to A6 and Ex.X1 were marked. The insurance company exhibited a copy of the insurance policy as per Ex.B1 and no oral evidence was adduced. After considering the material on record and the submissions made on both sides, a detailed discussion was taken up by the claims tribunal and eventually, it recorded its finding that the accident was out of rash or negligent driving of the driver of the offending jeep. It did not find any fault with the claimant either as the cause of accident or as having contributed to the accident. PW.1 claimed that he was earning Rs.4,000.00 per month. Learned claims tribunal on analysis of evidence observed that he was earning Rs.3,000.00 per month. His undisputed age was found to be 32 years. It considered Ex.A6/ disability certificate issued by District Medical Board, Kurnool and the evidence of PW.2/ doctor and the evidence of PW.1 and found that because of amputation of leg from right knee, he suffered 75% of physical disability as well as functional disability. Considering his age, multiplier 17 was applied. It arrived at Rs.4,59,000.00 towards loss of earning capacity. It then deducted Rs.1,00,000.00 stating that despite amputation of right leg below knee, he could still work and earn. Thus, Rs.3,59,000.00 was awarded towards loss of earning capacity. It further granted Rs.20,000.00 towards pain and suffering and Rs.30,000.00 towards loss of amenities and Rs.11,000.00 towards actual medical and attendant charges. Thus, total compensation of Rs.4,20,000.00 was granted. It further held that as per Ex.B1/ insurance policy, the policy was in force as on the date of accident and directed the owner and the insurer to be jointly and severally liable to pay the compensation.