(Prayer: Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toto present this Memorandum of Civil Miscellaneous Appeal being aggrieved by the decree and order Dt.31.07.2018 passed in M.V.O.P.No.162 of 2016 on the file of the Court of the Motor Accidents Claims Tribunal (I Additional District Judge, Prakasam, Ongole

IA NO: 1 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to condone a delay of 119 days in presenting the appeal and to pass

IA NO: 2 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to stay all further proceedings including execution of the decree dated 31.7.2018 passed in M.V.O.P.No.162/2016 on the file of the Court of the Motor Accident Claims Tribunal (I Additional District Judge), Prakasam, Ongole pending disposal of MACMA before this Hon'ble Court and pass)

1. The present appeal is filed by the New India Insurance Company, aggrieved by order dated 31.07.2018 in MVOP No.162 of 2016, on the file of Motor Accident Claims Tribunal-cum-I Additional District Judge, Ongole.

2. For the sake of convenience, the parties are referred to as they were referred before the Tribunal.

3. The petitioner filed claim petition under Section 166(1)(a) of Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by him in the accident that was occurred on 11.04.2016 in which the offending lorry bearing Registration No.AP16T 4984 was involved.

4. It is the case of the petitioner that he was working as private employee in wholesale readymade cloth shop at Chirala and earning an amount of Rs.10,000/- per month and the same was being contributed to his family. It was his further case that he was 32 years old and he was hale and healthy at the time of accident.

5. It is further case of the petitioner that, on 11.04.2016 when he was going on motorcycle bearing Registration No.AP16BQ 4198 as pillion rider, the offending lorry came at high speed in rash and negligence manner without blowing horn and hit the motorcycle of the petitioner near Polytechnic College, Prachur. As a result of which, the petitioner fell on the road and sustained grievous injuries all over the body and the rider of the motorcycle was died on the spot. The petitioner was shifted to Government Hospital, Chirala and later he was taken to Government General Hospital, Guntur for betterment. The petitioner sustained fracture injuries to his right hand collar bone, right leg knee cap and right leg below knee broken into seven (07) pieces, apart from injuries all over the body.

6. It is further case of the petitioner that two (02) surgeries were conducted on 22.04.2016 and 15.05.2016 and certain implants were inserted during the said surgeries. Later, he was discharged on 29.05.2016 with advice to take complete bed rest for one (01) year. It is further case of the petitioner that he had to undergone another five (05) surgeries and he was permanently disabled in view of the injuries received by him. Further, the petitioner has lost his earnings for one (01) year and the marriage prospects also got affected. A case in Crime No.22 of 2016 was registered under Sections 337, 304-A IPC, on the file of Parchur Police Station. The said crime was investigated into and charge sheet was filed. In view of the same, the petitioner filed claim petition seeking compensation of Rs.10,00,000/-.

7. The 1st respondent filed counter affidavit and the same was adopted by the 2nd respondent. The respondent Nos.1 & 2 denied all the averments made in the claim petition inter alia contending that the offending lorry was insured with the 3rd respondent and the same is in force as on the date of accident. It was further contended that the deceased, Akkapalli Suresh drove the motorcycle at high speed in rash and negligent manner and dashed the offending lorry and there was no negligence on the part of the 1st respondent/driver of the lorry and the driver of the lorry had valid driving license as on the date of accident.

8. A separate counter affidavit was filed by the 3rd respondent-Insurance Company stating that the deceased did not possess driving license as on the date of the accident and the petitioner was a pillion rider. It is its further case that the motorcycle suddenly entered into the road and hit the offending lorry, which was coming in opposite direction. It was further contended that as the deceased did not possess a valid driving license as on the date of the accident, the 3rd respondent is not liable to pay compensation and prayed to dismiss the petition.

9. To prove the case of the petitioner, he has examined PW-1 to 3 and marked Ex.A1 to A7 and Ex.X1 xerox copy of case sheet through the Doctor. On the other hand, the respondents did not examine any witnesses and the 3rd respondent marked copy of the Insurance Policy as Ex.B1.

10. Considering the pleadings and evidence put forth by the petitioner, the Tribunal awarded an amount of Rs.9,51,568/- together with interest @ 7.5% per annum from the date of petition till the date of realization payable by the respondent Nos.1 to 3 jointly and severally, within a period of three (03) months. Aggrieved by the same, the present appeal is filed.

11. Heard counsel for the appellant and learned counsel appearing for the respondents.

12. Perused the record.

13. The counsel for the appellant would strenuously contend that there was no negligence on the part of the driver of the offending lorry and in fact the deceased Akkapalli Suresh suddenly entered into the road from the Northern Side and dashed the offending lorry. In order to substantiate the said contention, the respondents have not examined any witnesses on its behalf. Except making a bald assertion in the counter affidavit that the accident was occurred in view of the negligence of the deceased Akkapalli Suresh, nothing is placed on record.

14. On the other hand, the petitioner has filed copies of FIR and Charge Sheet, which were marked as Ex.A1 & A3, to show that the accident was occurred due to the negligence of the driver of the offending lorry. Apart from the same, the petitioner himself was examined as PW-1, who deposed that, the accident was occurred due to the negligence of the driver of the lorry. Though PW-1 was cross-examined at length, nothing was elicited to disprove his evidence. In the circumstances, it cannot be said that the accident was occurred due to the negligence of the deceased Akkapalli Suresh.

15. Further, the counsel for the appellant contended that there is contributory negligence on the part of the deceased, Akkapalli Suresh. A perusal of the contents of the counter affidavit, it is clear that the appellant did not raise such a plea before the Tribunal. Therefore, the counsel for the appellant cannot be permitted to canvass the same in the absence of any pleading and the Tribunal had no occasion to deal with the said contention. Accordingly the said contention of the appellant is also rejected.

16. Further the counsel for the appellant would contend that the petition is bad for non-joinder of necessary party i.e., the Insurance Company of the motorcycle. In this regard, it is pertinent to note that unless the appellant is able to prove that there was contributory negligence on the part of the rider of the motorcycle, non-joinder of the insurer of the motorcycle is not fatal to the case on hand, especially in view of the fact that this Court had rejected the contention of contributory negligence raised by the appellant. Accordingly this issue is also answered in favour of the petitioner.

17. The counsel for the appellant would submit that the Tribunal had awarded compensation of Rs.9,51,568/-, despite the fact that there is difference of opinion between PW-2 & PW-3, with regard to disability of the petitioner. It is the specific case of the appellant that PW-2 deposed that the disability of the petitioner was assessed at 55% and whereas PW-3 has assessed at 87%. He would further rely on the cross examination of PW-3, in which he has stated that he did not mention the test conducted to arrive at the disability of the petitioner as 87%. This Court is not in agreement with the contention of the appellant inasmuch as, a close perusal of cross examination of PW-3, it is clear that he did not mention the test conducted by him in assessing the percentage of disability of the petitioner. PW-3 never stated that, he did not conduct any test to come to such conclusion. Therefore, the evidence of PW-3 does not come to the rescue of the appellant.

18. As already noted supra, the respondents/appellants have not produced anything on record to disprove the evidence of the claimant. In the circumstances, the contention of the appellant cannot be countenanced.

19. Further the counsel for the appellant would rely on the Judgment rendered by the Hon’ble Apex Court in the case of “Raj Kumar Vs. Ajay Kumar”( 2011 (1) SCC 343), and contend that the disability percentage of a particular limb cannot be equated to whole-body functional disability or loss of future earning capacity

20. In this context, it is pertinent to note that, on perusal of the exhibits produced by the petitioner, it is clear that he sustained fracture injuries to his right hand collar bone, right leg knee cap and right leg below knee broken into seven (07) pieces, apart from injuries all over his body. Further the petitioner undergone surgeries on 22.04.2016 and 15.05.2016 for the said injuries.

21. A perusal of the evidence of PW-2, it is clear that he examined the petitioner and found (i) Bicondylar fracture of right tibia with inter condilor extension into right knee joint and distal extension into Metaphysis of tibia (ii) fracture of right clavicle (iii) contused skin with multiple abrasion involving right knee and proximal 1/3rd of right leg. PW.2 further deposed that PW.1 had undergone distal tibia skeletal traction followed by cancel lous screw, Hybrid fixation externally and he was discharged on 29.05.2016 and the three injures were grievous in nature, and he had undergone surgical operations on 22.04.2016 and 15.05.2016. Further the petitioner also got examined Civil Assistant Surgeon of Orthopedic Department, RIMS Hospital, Ongole, as PW-3. On perusal of the evidence of PW-3, it is clear that he was a member of the Medical Board and he assessed the disability of the petitioner as 87% and a certificate was also issued to that effect, which was marked as Ex.A7. The evidence of PW-1 to 3 is trustworthy and nothing was elicited to discredit the same, despite they were cross-examined at length. Based on the disability certificate, which was marked as Ex.A7 and following the ratio laid down by the Hon’ble Apex Court in “Sarla Verma and others Vs. Delhi Transport Corporation and another”( 2009 ACT 2003), the Tribunal had awarded compensation of Rs.9,51,568/- under various conventional heads together with interest @ 7.5% per annum.

22. Though, it is contended that the compensation awarded is excessive, this Court does not find any force in the contention of the appellant inasmuch as the Trial Court after taking into consideration of the documentary evidence placed before it had arrive at just compensation.

23. For the foregoing reasons, this Court does not find any merits in the appeal, accordingly the same is dismissed. There shall be no order as to costs.

As a sequel, pending applications, if any, shall stand closed.