THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR

CIVIL MISCELLANEOUS APPEAL No.2355 of 2000

Date:19.11.2009

Between:

Shaik Jaffar and others. ..Appellants.

and

B. Narasimha and another. ..Respondents.

THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.2355 of 2000 ORDER:

This is an appeal by the claimant, who sought compensation of Rs.3,00,000/- for the injuries suffered in the accident, which occurred on 15.03.1996. The claimant was a taxi driver aged 35 years and claims that he was earning Rs.2,000/- per month. On the fateful day, a lorry belonging to the first respondent bearing No.ATT 5164 and insured with the second respondent herein dashed against the taxi driven by the claimant resulting in serious head injury and cerebral hemorrhage to the claimant. The Police registered a case in Crime No.15 of 1996 against the driver of the offending lorry. The claimant has taken treatment initially at local hospital, Bhongir, where he was given first aid and thereafter at Neuro Surgical Ward of Osmania General Hospital. It is claimed that he is not recovered and hence, filed the claim petition seeking compensation of Rs.1,50,000/-, and by way of amendment, the same was enhanced to Rs.3,00,000/-. Before the Tribunal, the claimant examined himself as P.W.1 and his wife as P.W.2 apart from examining the Nero Surgeon as P.W.3 on commission. Exs.A-1 to A-9 were marked on behalf of the claimant, which are in the nature of F.I.R., charge sheet, medical certificate, discharge certificate, C.T. scan, medical prescriptions and bills, and the original driving licence of the claimant. The respondent-insurance company only marked Ex.B1 - insurance policy and the case sheet – Ex.C-1 was marked through Court.

The Tribunal answered the first issue regarding rash and negligent driving in favour of the claimant. On the second issue regarding entitlement of compensation, the Tribunal accepted the

evidence produced by the claimant towards medical bills, prescriptions and his prolonged hospitalization. The bills of all the medicines could not be produced and the bills produced are only to the tune of Rs.3,100/-. However, keeping in view the past and future treatment which the claimant had taken and would be required to take, the Tribunal awarded a sum of Rs.10,000/- towards medical reimbursement. A further sums of Rs.20,000/- under the head of pain and suffering, Rs.50,000/- for permanent disability and Rs.4,500/- for loss of earnings considering it for three months from the date of accident, were granted. With regard to loss of future income, an additional sum of Rs.30,000/- was also awarded. Thus, an aggregate amount of Rs.1,15,000/- was awarded.

In this appeal, it is contended by the learned counsel for the appellants that the Tribunal has not taken into consideration the evidence of the Doctor – P.W.3, who has described the injury suffered by the claimant. Though the Tribunal recorded the gist of it in para 12 of the order, the consequential effect of such injury and disability on the quality of life and future earnings of the claimant were not kept in mind and, consequently compensation was awarded on a much lower side and the same warrants enhancement.

After hearing the learned counsel for the appellants yesterday, as there was no representation on behalf of the respondent-Insurance Company, I had posted the matter to today while directing that the name of the insurance company also be notified in the cause list. Accordingly, the name of the insurance company appears in the cause list. However, even today, there is no representation on its behalf. Therefore, there is no alternative except to dispose of the appeal on merits.

As contended by the learned counsel for the appellants, the

Tribunal has not fully appreciated the medical evidence on record, which speaks of the serious disability of the claimant. The Tribunal has noted the demonour with respect to the evidence of the claimant which shows that he was very slow in giving answers and sometimes he gives two or three answers to the same question. Further, the loss of memory suffered by the claimant is substantiated by the evidence of the Doctor – P.W.3. According to the said medical evidence, injury to brain results in patient becoming epileptic, and understanding as well as speech suffers strain and difficulty. On account of the damage to the left side of the brain due to the accident, the claimant is not on his own and needs a continuous companion for all his day to day moments and needs. Obviously, in view of such physical and mental condition of the claimant, he is not in a position to carry on his avocation as taxi driver. The claimant has thus suffered a very serious disability on account of the said accident and he had to manage his life with such disability. The Tribunal, though has granted compensation on the other heads, on the facts and circumstances of the case, I am persuaded to agree with the learned counsel for the appellants that compensation with regard to permanent disability granted by the Tribunal at Rs.50,000/- does not appear to be reasonable and needs appropriate enhancement. The claimant, who was working as taxi driver, at the age of 35 years, had suffered the disability. The percentage of disability though is not quantified in the medical evidence, the sum and substance of the medical evidence squarely shows that he is mentally and physically handicapped to such an extent that he has to be under continuous medication and recovery is very remote. The said damage to the most important organ, namely, brain, therefore, is incurable. The disability, therefore, needs an appropriate enhancement and in my view, it would be just and proper to award a further sum of Rs.50,000/- as compensation for the

permanent disability suffered by the claimant.

During the pendency of this appeal, the claimant died on 29.03.2006 and the appeal is now being prosecuted by his legal representatives. The death of the claimant after ten years of the accident may have its root cause in the accident, but though there is no claim made in that respect, keeping in view that entire family is being affected on account of the said accident, it would be just and proper to allow the appeal by enhancing the compensation granted by the Tribunal for a further sum of Rs.50,000/- (Rupees fifty thousand only) towards permanent disability. The enhanced amount shall carry interest at 7.5% per annum from the date of claim till realization.

In the result, the Civil Miscellaneous Appeal is allowed to the extent indicated above. No order as to costs.

__________________________ (VILAS V. AFZULPURKAR, J)

19 th November, 2009 GHN