THE HON’BLE SMT. JUSTICE RENUKA YARA M.A.C.M.A.No.326 OF 2023

JUDGMENT:

This is an appeal preferred by the appellant/claimant aggrieved by the order, dated 22.11.2022, passed in M.V.O.P.No.296 of 2019 by the learned Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nizamabad (for short, ‘the Tribunal’).

2. Heard both sides. Perused the record.

3. The brief facts of the case are that the appellant filed the claim petition for Rs.2,00,000/- as he met with an accident on 17.09.2018 while he was going on TVS XL No.TS-16-EH-3251 from Arsapally to Nizamabad and at 6:30 P.M. when the motorcycle crossed Arsapally railway gate, one lorry bearing No.TS-16-UB-5200 driven by its driver in a rash and negligent manner dashed the TVS XL moped from back side resulting in accident and injuries to the appellant. In the accident, the appellant sustained fracture of right hand, right leg and right scapula and other injuries all over the body.

4. The appellant/claimant got examined P.Ws.1 and 2 and got marked Exs.A1 to A16. Respondent No.2 got examined R.W.1 and got marked Ex.B1-copy of policy.

5. Upon examining the oral and documentary evidence, the Tribunal held that the accident occurred due to rash and negligent driving of the driver of the offending lorry and therefore, the respondents are held liable to pay compensation. Further, upon considering the evidence of P.Ws.1 and 2, compensation of Rs.1,20,000/- with interest was awarded.

Aggrieved by the same, the present appeal is preferred.

6. In grounds of appeal, the appellant contended that the Tribunal failed to consider the income of the appellant at Rs.30,000/- per month as he was milk vendor and shepherd. Further, the bills of Rukmini Hospital have not been considered and therefore, sought enhancement.

7. During arguments in appeal, learned counsel for the appellant contended that the Tribunal failed to consider the bills marked under Exs.A9 to A13, more particularly, Ex.A11-hospital bill showing payment of Rs.74,320/-. Further, loss of earnings is not awarded and meager amount is awarded towards transportation.

8. In response, learned counsel for the respondents argued that the Tribunal has considered the evidence on record and that there is no error in passing of the award and therefore, prayed to confirm the same.

9. A perusal of the record shows that the Tribunal has awarded Rs.50,000/- towards grievous injury and Rs.25,000/- towards simple injuries and the same need not be interfered with. Further, an amount of Rs.30,000/- is awarded towards pain and suffering and Rs.10,000/- towards extra nourishment and Rs.5,000/- towards transportation. There is payment of compensation twice under the heads of grievous injury and pain and suffering. Therefore, this Court does not see any reason to interfere with the payments under various heads.

10. As contended by the appellant, the Tribunal did not consider payment of loss of earnings as a milk vendor and shepherd. Since there is no proof about income of the appellant as a milk vendor and shepherd, the notional income is taken at Rs.10,000/- per month and an amount of Rs.50,000/- is awarded for 5 months of time period which may be taken for healing of wound and resuming normal work.

11. Further, a comparison of the oral evidence of P.W.2-Dr.B.Gavaskar and Exs.P9 to P13 shows that the Tribunal has arrived at an erroneous finding that the nature of injuries under Ex.A3 and the treatment bills pertaining to Exs.A5 to A13 are not similar and therefore, the said bills are not taken into consideration. This finding of the Tribunal is clearly erroneous in view of the oral evidence adduced by P.W.2-doctor wherein he clearly deposed that the treatment given and the bills exhibited under Exs.A5 to A13 are corresponding with the injuries in Ex.A3-medical certificate. The only aspect i.e. separating Ex.A3 certificate and the treatment is that there was non-healing of the foot injury which led to ulcer and therefore, the appellant had to take t