Dr. B. Siva Sankara Rao, J.@mdashThe injured-claimant filed this appeal, having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, at Warangal, (for short, ''Tribunal'') in M.V.O.P. No. 1043 of 2001 dated 19.07.2004, dismissing the O.P. for compensation claim of Rs. 1,00,000/- (Rupees one lakh only) as prayed for in the claim petition u/s 166 of the Motor Vehicle Act, 1988 (for short, ''the Act''). Heard Sri A. Prabhakar Rao, the learned counsel for the appellant, and none appeared for the respondent Nos. 2 and 3 (owner of crime vehicle and Insurer-Oriental Insurance Company Limited respectively) despite served notice and the appeal is dismissed for default against 1st respondent-driver. Taken as heard the respondent Nos. 1 and 2 for their absence to decide on merits and perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
2. The contentions in the grounds of appeal in nutshell are that the award of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in appreciating the evidence on record, considering the delay in lodging report to police since intimated, not considering the injuries sustained by the appellant, not considering the treatment taken by the appellant in MGM hospital, Warangal and evidence of P.W. 3 doctor and not believing the investigation done by police and filing charge sheet against the driver who caused accident and but simply arrived to a wrong conclusion of dismissing the petition instead of awarding compensation as prayed for from nature of the injuries, pain and sufferance there from, treatment undergone and amount incurred for the same and hence to allow the appeal by setting aside the award of the Tribunal.
3. Now the points that arise for consideration in the appeal are:
1. Whether the award passed by the Tribunal is not just and requires interference by this Court while sitting in appeal to set aside the same if so, to what extent the claimant is entitled for compensation with what rate of interest?
2. To what result?
POINT-1:
4. The facts of the case are that on 02.06.2001 due to the rash and negligent driving of the driver-1st respondent of the crime vehicle (auto bearing No. AP 36 U 5460) belongs to the 2nd respondent insured with the 3rd respondent covered by Ex. B.1 policy, same dashed against the push cart on which the claimant by name Kolluri Mallaiah S/o. late Vepari, aged about 43 years, resident of Deshaipally village, Duggondi Mandal, Warangal district, agriculture and business by avocation earning of Rs. 75,000/- p.a. from agriculture and Rs. 10,000/- p.a. from business, was sitting, as a result, he sustained injury i.e. fracture to right leg at hip region (as per Ex. A.2 wound certificate), which occurrence is covered by Ex. A.1 First Information Report in Cr. No. 50 of 2001 u/s 338 IPC and Ex. A.5 charge sheet. The Tribunal disbelieving the oral and documentary evidence on record, dismissed the O.P. with costs of 3rd respondent.
5. It is the contention of the learned counsel for the claimant in support of the grounds of the appeal that the Tribunal is erred in disbelieving the oral and documentary evidence on record in proper perspective and dismissing the compensation claim of the claimant which is bad in law and the same may be set aside and award compensation as prayed for considering the material on record.
6. Before coming to decide, what is just compensation in the factual matrix of the case, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James 1965 (1) A11. E.R. 563, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly 1963 (2) A11. E.R. 432 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver 1969 (1) A11. E.R. 555 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court in
7. From the above legal position, coming to the factual matrix, on the date of accident the claimant sustained fracture to right leg at hip region but he did not report the occurrence immediately much less approach the police or the government hospital. He claimed to have been treated by doctor Ambareesh immediately after the occurrence at Gudur but the doctor was not even examined. No doubt, against said material that points out his latches to believe or not of the sustaining of injuries in the alleged motor accident, there is other material in his favour to say on the report of his son mentioning these about 8 days after the occurrence, the police registered the crime, investigated and filed charge sheet pointing out the involvement of driver of the crime auto i.e. 1- respondent belongs to the 2nd respondent and insured with the 3rd respondent. Further, Ex. A.5 charge sheet filed pursuant to Ex. A.1 First information Report shows eye witness who witnessed the occurrence of the accident in which the claimant-appellant sustained injury is one K. Sampath Kumar examined as P.W. 2 not only proved the accident but also the injury sustained by the claimant and the same corroborates the evidence of P.W. 1- claimant with reference to the contents of Ex. A.1 First information Report and Ex. A.5 charge sheet. Further, the Ex. A.2 wound certificate issued by P.W. 3 doctor R. Koteshwar Rao who deposed as subsequently examined the claimant and proved the injuries that also lends corroboration to above evidence on the factual matrix to come to conclusion that the claimant-appellant sustained injury on right hip outcome of involvement of the crime auto of respondent, in said motor accident on 02.06.2001. It is only based on the factum of non-reporting of the occurrence immediately for the delay caused and for non-examination of the doctor who examined the claimant initially, the Tribunal came to conclusion that the very sustaining of injury in the accident caused with the crime dismissed the claim.
8. It is the settled proposition of law on appreciation of evidence that a witness can be believed in part even disbelieved in rest as it is the appreciation of the evidence, as discussed above that some circumstances are pointed out against the claim when there are major factors in supporting the claim and it is a civil claim and proof required is from preponderance of probability and it is also the settled proposition particularly in a motor accident claim that there some guess work is necessary to make even to find out the accident and involvement of the crime vehicle and sustaining of injuries as it is not possible to expect any eye witness to come and wait there expecting any accident. Having regard to the above, when evidence from preponderance of probability points out the sustaining of the injuries by the claimant-appellant from involvement of the crime auto of the respondent No. 2, insured with the 3rd respondent and driven by the respondent No. 1 on 02.06.2001, the conclusion arrived by the Tribunal in dismissing the claim is unsustainable and liable to be set aside.
9. Now coming to quantum of compensation concerned, the claimant -appellant sustained fracture to right hip which is no doubt vital part and as on the date of accident and from the nature of injury and for no medical evidence of any disability much less permanent nature, compensation that can be awarded including for pain and sufferance for the fracture is Rs. 20,000/- and even there is no proof regarding medical expenses and treatment by filing any bills and from the evidence of P.W. 3 coupled with the factual matrix show he underwent treatment in two hospitals all through for the fracture injury an amount of Rs. 5,000/- to award for the same is reasonable apart from Rs. 5000/- towards transport and attendant charges and loss of earnings in all to allow Rs. 30,000/- with interest at 7 1/2 % p.a. throughout as per the settled proposition of law in POINT-2:
