BUTHA PRASAD Vs. SHAIK JAFIFULLA

JUDGEMENT

(1.) The claimant/appellant in M.V.O.P.No.553/95 on the file of I Additional District Judge, Guntur preferred the Appeal C.M.A.No.2170/99 praying for enhancement of compensation. Likewise, the Oriental Insurance Company Limited, 2nd respondent in the aforesaid O.P. preferred C.M.A.No.2597/2000 questioning awarding of compensation on the ground the same is excessive. However, it is needless to say that in the light of the provisions of Sections 173 and 149(2) of Motor Vehicles Act 1988 and also in view of the decisions National Insurance Co.Limiled., chandigarh Vs. Nicolletta Rohtagi and others , 2002(7) SCC 456 Chinnamma George and others Vs. N.K.Raju and another, 2000(4) SCC 130 and Jagdish Prasad Pandey Vs. Darshan Singh and another, 2000(9) SCC 527 " the Insurance Company is not entitled to maintain an Appeal unless the conditions as specified under Section 1 73 read along with Section 149(2) of the Act aforesaid are satisfied.

(2.) Coming to the facts of the case, the appellant/claimant in C.M.A.No.2170/99, hereinafter referred to as claimant, filed a non- fatal accident claim for Rs.2,50,000/-under Sections 140, 141 and 166 of the Act aforesaid. It is stated that the appellant/claimant was of 30 years old and was a steward in M/s.Blooming Dale, Lakshmipuram, Guntur on the date of the accident. On 21-6-1995 at about 1 1 p.m. while the appellant/claimant was returning home after duty, the driver of the offending auto bearing registration No.AIV 7956 dashed against the appellant/claimant from behind in the 5th Lane, Brodipet, Guntur. The accident would not have occurred but for the rash and negligent driving of the driver of the auto who drove the auto carelessly and without blowing horn. The appellant/claimant was taken by the auto driver to Government General Hospital, Guntur where he was inpatient for a period of seven days. The right thigh of the appellant/claimant was operated upon at the hospital and he had to take bed rest for four months and he is not able to walk normally even now. Owing to the accident the appellant/claimant lost his ability. The appellant/claimant initially made a claim of Rs. 1,00,000, but when it was found that he requires further treatment by artificial hip replacement, he made a claim for Rs.2,50,000/-. 2. The 1st respondent in the M.V.O.P. remained exparte. The 2nd respondent entered appearance and denied the claim. The following Issues were settled by the Tribunal : 1. Whether the accident took place due to rash and negligent driving of the driver of Auto rickshaw No.AIV 7956? 2. To what compensation if any the petitioner is entitled to and from whom?

(3.) To what relief? The learned Judge on appreciation of evidence of P.W.1 and P.W.2 and also Exs.A-1 to A-9 had awarded compensation of Rs.61,200/- for loss of earning power and permanent disability and Rs.60,000/- towards compensation for future medical expenses and replacement of hip joint, compensation of Rs. 10,000/- for pain and suffering, Rs.3800/- for medical expenses, and in total granted Rs.1,35,000/-. In view of the findings recorded on Issues 1 and 2, the O.P. was allowed in part with proportionate costs granting compensation of Rs. 1,35,000/- to the appellant/claimant and directed respondents 1 and 2 to jointly and severally discharge the liability and the same to be deposited together with interest @ 12% per annum from the date of petition till the date of deposit within one month from the said date and on such deposit the appellant/claimant was entitled to withdraw Rs.55,000/- at the first instance and the balance shall lie in fixed deposit in a Nationalised Bank for a period of 30 months at the end of which it shall be paid to the appellant/claimant with accrued interest. Advocate fee was fixed at Rs.600/-. The matter was carried by way of Appeals and in the Appeal filed by the Insurance Company i.e., C.M.A.No.2597/2000 an interim order was granted and it is stated that the same had been complied with and the amount also had been withdrawn. Strong reliance was placed on G.V.Sathya Sesha Sai Vs. M.Siva Leela and others, 1988(1) ALT 14 and further submissions were made that the calculation in relation to the multiplier is not in accordance with the Second Schedule read along with Section 163-A of the Act aforesaid. The relevant portion of the Second Schedule in relation to Disability in Non-fatal accidents reads as hereunder :