contributory negligence on the part of the claimant is concerned, as, it was admitted by the claimant that she was sitting on the edge of the Jeep thereby contributing to the accident. ; Dr.T.Narsing Rao, who issued Ex.A-3, wound certificate, is a stock witness. The approach of the lower Court in that regard does not find favour with this court.

HONOURABLE SMT. JUSTICE T. RAJANI      

MACMA No.470 of 2008  

07-04-2017

Smt. Gangone Vijayalaxmi  ...Appellant

Mr. D.Madan Kumar and another...Respondents  

Counsel for Appellant: Sri Venkateshwar Varanasi

Counsel for 2nd Respondent: Sri G.Vasantha Rayudu

<GIST:

>HEAD NOTE:  

? Cases referred

SMT. JUSTICE T.RAJANI  

MACMA. No.470 of 2008  

JUDGMENT:  

        This appeal is preferred by the appellant, who is the claimant
before the lower Court, assailing the judgment dated 28.04.2006 passed
in O.P. No.990 of 2002 by the IV Additional District Judge (FTC),
Nizamabad by virtue of which, the lower Court dismissed the said
O.P. that was filed by the claimant seeking compensation for the injuries
sustained by her in a motor accident, which took place on 25.03.2002
at 5.00 pm.

        Heard the learned counsel on either side and perused the material
on record.

        At the hearing, the learned counsel for the appellant argued on the
aspect of contributory negligence, which was awarded by the lower Court
at the rate 25% against the claimant. No interference is felt necessary
with regard to the judgment of the lower Court, so far as its conclusion
that there was contributory negligence on the part of the claimant is
concerned, as, it was admitted by the claimant that she was sitting on
the edge of the Jeep thereby contributing to the accident. The learned
counsel for the appellant submits, by bringing to the notice of this Court,
that apart from the claimant another girl also sustained injuries and died
subsequently and seeks to hold that there is no contributory negligence
on the part of the claimant.  In this regard, this Court sees that there is
absolutely no evidence with regard to where the said injured girl was
sitting. The FIR shows that the driver of the Jeep dashed against an
electrical pole, which speaks about gross negligence on the part of the
driver of the Jeep. But however, negligence of the claimant cannot be
ruled out totally and interests of justice would be met if it is concluded
that there was contributory negligence  on the part of the claimant,
if not to an extent 25%, to an extent of 15%.

        After having rendered a finding that the accident occurred due to
the negligence of the driver of the crime vehicle, the lower court dismissed
the claim of the claimant, going by the understanding that Dr.T.Narsing
Rao, who issued Ex.A-3, wound certificate, is a stock witness.  The
approach of the lower Court in that regard does not find favour with this
court.  It may be true that said Dr.T.Narsing Rao is a stock witness.  But,
the observation of the lower Court to that effect does not carry any basis.
Apart from that while dealing with the claim under a beneficial
legislation the approach of a Court should be different from what it has
been by the lower court, in this case. A comprehensive study of the
documents would have perhaps led the court to a different conclusion.

        The report given with regard to the accident is marked as Ex.A-1,
which shows that the accident caused injuries on the head and legs of
the claimant and that the claimant was taken for treatment to the
hospital at Nizamabad.  Hence, prima faice, the fact that the petitioner
sustained injuries in this accident is proved.

      Ex.A-3 is the requisition given by the office incharge of P.S.
Yedpalli to the medical officer incharge Government Civil Hospital,
Nizamabad, to examine the claimant and render opinion.  On the reverse
of the same requisition Dr.T.Narsing Rao mentioned the injuries
sustained by the claimant.  Hence, by the above fact it can be concluded
that the requisition has reached the hands of Dr.T.Narsing Rao and that
he has examined the claimant.  The above two facts together would show
that the claimant was nevertheless examined as a patient, in which case
the same is expected to be reflected in the records. There is no contra
evidence produced with regard to the injuries allegedly sustained by the
claimant.  The lower Court took pains to summon the Medico Legal Case
(MLC) file from the said hospital to verify whether the claimant was
admitted in the hospital and found that there was no entry in the said
MLC containing the admission of the claimant.  Going by the fact of the
absence of entry of the name of the claimant in the MLC, the lower Court
disbelieved the very fact of the claimant sustaining injuries, which in
considered opinion of this Court is not proper.  Obviously, the lower
Court seems to have entertained a doubt with regard to the sustaining of
injuries by the claimant, from the fact that Dr.T.Narsing Rao was a stock
witness and it was prompted to call for the MLC, to verify the
genuineness of the case and incidentally no entry was found in the MLC
extract thereby giving strength to the opinion of the lower Court.  But the
probable assumption that can be made in this case, by looking at the FIR
and requisition given by the Police, is that the claimant sustained
injuries and was sent to the hospital. The lower Court stopped short of
further probing into the aspect of non entry of the name of the claimant
in the MLC, to understand the reason for the said non entry. The reason
for the said non entry may not be the falsity of the injuries alone.
The lethargy of the concerned can also result in such non entry and the
same would have come out if there had been a further probe. Hence,
in the above circumstances, it has to be believed that the claimant
sustained injuries as mentioned on the reverse of the requisition given by
the Police, which are two fracture injuries i.e.  fracture of left patella
and
fracture of  3rd and 4th left ribs and considering the same,
this Court is of the opinion that interests of justice would be met if
Rs.30,000/- is awarded towards pain and suffering caused by two
fracture injuries and accordingly, Rs.30,000/- is awarded.

      Further, this Court is also not in a position to uphold the
genuineness of the medical bills for the reason that the claimant did not
examine any doctor to testify about the genuineness of the said bills.  The
name of Dr.T.Narsing Rao is found on all the bills and the lower Court
did not believe the trustworthiness of Dr.T.Narsing Rao and this Court
opines that though there is no basis laid for the belief of the lower Court
about Dr. T.Narsing Rao being a stock witness, there must have been
some reason for the lower Court to come to that conclusion.  However, an
amount of Rs.10,000/- can be awarded considering probabilities of the
case and the fracture injuries having been sustained to left patella and
ribs of the claimant, might have disabled her for at least  two months
from attending her duties.  Even if she is considered as a housewife her
services can be valued, in the least, at Rs.3,000/-
per month.  Hence, Rs.6,000/- is awarded under the head of loss of
services or income as the case may be, during the period of treatment rest
and recovery, thereby making the total award as Rs.46,000/- out of
which, Rs.6,900/- is deducted towards contributory negligence of
claimant, thereby making the award as Rs.39,100/-.

      In the result, appeal is partly allowed by awarding Rs.39,100/- as
compensation, with interest at the rate of 7.5% per annum from the date
of petition till the date of realization.  Both the respondents shall be
liable
for the award amount and they are directed to deposit the award amount
within a month from the date of this award. Proportionate costs are
ordered.
___________________  
JUSTICE T.RAJANI  
Date: 07.04.2017