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2004 DIGILAW 610 (AP)

A. P. S. R. T. C. v. Thallapally Veeranna

2004-06-25

C.Y.SOMAYAJULU

body2004
( 1 ) FIRST respondent filed a claim petition seeking compensation of Rs. 1,28,000/-from the appellant alleging that when he was travelling as a pillion rider on the scooter belonging to S. Rajamouli, a bus belonging to the appellant-Corporation, being driven in a rash and negligent manner by the second respondent, dashed against the said scooter and caused injuries to him. As per the order dated:10-04-1998 in I. A. No. 168 of 1998, the tribunal permitted the first respondent to amend his claim and seek enhanced compensation of Rs. 2,50,000/ -. ( 2 ) SECOND respondent chose to remain ex parte before the Tribunal. Appeal against him stood dismissed for non-payment of process. ( 3 ) APPELLANT filed a counter contesting the claim inter alia contending that the accident occurred only due to the negligence of the driver of the scooter, but not due to the negligence of the second respondent. ( 4 ) IN support of his case first respondent examined himself as P. W. I and the doctor who attended on him in the Government hospital as P. W. 2 and marked Exs. A-1 to a-11. On its behalf, appellant examined the second respondent as R. W. I, but did not adduce any documentary evidence. ( 5 ) THE Tribunal having held that the accident accurred due to the rash and negligent driving of the second respondent awarded Rs. 1,74,000/- as compensation to the first respondent against the appellant. Aggrieved thereby, this appeal is preferred by the owner of the bus involved in the accident. ( 6 ) THE points for consideration are: (i) Whether the accident occurred due to the rash and negligent driving of the bus, as contended by the first respondent, or due to the rash and negligent driving of the scooter by its driver, as contended by the appellant (ii) To what compensation if any, is the first respondent entitled to ? ( 7 ) POINT No. (i): The Tribunal without discussing the documentary evidence on record had, after extracting the evidence of p. W. I and R. W. I, held:"on a perusal of the evidence on record and on perusal of the documents filed under Exs. A-1 to A-3 and A-6, it is clear that the accident took place due to the rash and negligent driving of the bus driver i. e. R. W. 1. A-1 to A-3 and A-6, it is clear that the accident took place due to the rash and negligent driving of the bus driver i. e. R. W. 1. Therefore, this issue is found in favour of the petitioner and against the respondent". I am constrained to say that had the Tribunal even perused Ex. A-6, Panchanama of the scene of accident, it would not have reached the conclusion to which it had. Obviously, because the Tribunal did not even go through ex. A-6 or the notings in Ex. A-7, case sheet relating to the first respondent maintained in the M. G. M. Hospital, it reached the above conclusion in a mechanical manner, probably on the basis of the popular premise or belief that the bigger vehicle involved in the accident would only have caused the accident. ( 8 ) EX. A-6, panchanama of the scene of accident, shows that the front portion of the bus, which was on the left side of the road, was at a distance of one foot from a culvert with a dent on its front portion and that the scooter was lying to the right of the bus and that there were blood stains in one foot area behind the scooter and that the width of the black-top road is 12 feet and that there were 12 feet length skid marks behind the bus made by the rear wheels of the bus. Here it is necessary to point out that the specific case of the appellant in its counter is that the driver of the bus (R. W. I), on seeing a scooterist coming in opposite direction, at a high speed, negotiating a culvert, which is lesser in width than to road, halted the bus before the culvert and that the scooterist, being unable to control his scooter dashed the bus and had fallen down. The same is the evidence of R. W. 1. Thus, the plea of the appellant, and the evidence of R. W. 1 receive corroboration from Ex. A-6. ( 9 ) EX. A-1 (F. I. R.) was registered on a complaint given by the first respondent at 4. 00 P. M. Since the evidence of first respondent, as P. W. I, is that he was shifted to hospital from the accident, it is clear that ex. A-1 was registered after he was admitted in the hospital. A-6. ( 9 ) EX. A-1 (F. I. R.) was registered on a complaint given by the first respondent at 4. 00 P. M. Since the evidence of first respondent, as P. W. I, is that he was shifted to hospital from the accident, it is clear that ex. A-1 was registered after he was admitted in the hospital. Judicial notice can be taken of the fact that whenever an injured person, especially in a medico legal case, is taken to government hospital, the doctor notes a brief history as to how the victim received the injuries found on him. In the column relating to the history of the present illness, in page one of Ex. A-7 (the case sheet of the first respondent) it is noted "alleged to have sustained injuries in a road traffic accident when the scooter, he was travelling, hit a r. T. C. bus near Narayanagiri and Peesara (M. Dharmasagar) at about 2. 30 to 3. 00 p. m. tpdau" (emphasis supplied ). The earliest version as to how the accident took place was given by the first respondent is to the doctor in the hospital as stated above. Subsequently, when he made a statement to the police, he changed his version as in Ex. A- 1, probably on being advised that he would get compensation from the appellant if he were to throw the blame on the driver of the bus. That could be so, would be evident from the fact that first respondent as P. W. 1 admitted during cross-examination that there is a culvert whose width is less than the width of the road, near the scene of accident. When the bus which was on the left side of the road, did not even enter the culvert, and when it is seen from Ex. A-6 that there were skid marks of 12 feet, made by the rear wheels of the bus behind the bus, the evidence of r. W. 1 that he on seeing the scooter coming in his opposite direction, applied suddenbrake and that the scooterist being unable to control the speed came and dashed against the front portion of the bus, appears to be true. Apart from R. W. 1, the driver of the scooter is the best person to speak as to how the accident took place. Apart from R. W. 1, the driver of the scooter is the best person to speak as to how the accident took place. But, for reasons best known to him, first respondent did not think it fit to examine the driver of the scooter as a witness on his behalf. Be that as it may, the skid marks to a distance of 12 feet made by the rear wheels of thebus shows that the bus was being driven at a considerable speed before the accident. So it is clear that R. W. I was rash, and the driver of the scooter on which first respondent was proceeding, was rash and negligent at the time of accident. In the facts and circumstances of the case, it can be taken that the accident occurred due to 60% negligence on the part of the driver of the scooter and due to 40% negligence on the part of the driver of the bus i. e. R. W. 1 and so, i hold that the accident took place due to 60% negligence on the part of the driver of the scooter on which the first respondent was travelling and due to 40% negligence on the part of the driver of the bus i. e. , R. W. 1. The point is answered accordingly. ( 10 ) POINT No. (ii); The evidence of P. W. 1 is that he sustained fractures of his right thigh, right knee and injuries on his left foot, chest and lost some front teeth. The evidence of P. W. 2, the doctor who treated the first respondent, shows that first respondent suffered a closed head injury, and fractures to right hip joint, femur, tibia and mandible. He did not speak any injuries or fractures to the left foot as stated by the first respondent. Since first respondent suffered fractures and underwent treatment in hospital, he is entitled to compensation for pain and suffering. For the pain and suffering due to the injuries sustained by him, first respondent is entitled to Rs. 10,000/-, but not at the rate of rs. 10,000/- per each injury as awarded by the Tribunal. ( 11 ) EX. A-11 bunch of bills, which did not get defaced, show that first respondent spent rs. 17,684-11 ps. for purchase of medicines etc. Since the amounts covered by the defaced bills in Ex. 10,000/-, but not at the rate of rs. 10,000/- per each injury as awarded by the Tribunal. ( 11 ) EX. A-11 bunch of bills, which did not get defaced, show that first respondent spent rs. 17,684-11 ps. for purchase of medicines etc. Since the amounts covered by the defaced bills in Ex. A-11 are not known, first respondent can be awarded Rs. 18,000/- towards purchase of medicines. ( 12 ) SINCE the evidence of P. W. 2 read with ex. A-7 shows that first respondent was in hospital for about six months, Rs. 2,500/- + rs. 2,500/- = Rs. 5,000/- awarded by the tribunal towards transport and extra- nourishment appears to be reasonable and so, he is entitled to Rs. 5,000/- towards extra- nourishment, transport charges and attendant charges. ( 13 ) RS. 9,000/- awarded by the Tribunal to the first respondent towards loss of earnings during the period of treatment also appears to be reasonable and so, I award rs. 9,000/- towards loss of earnings during the period of treatment. ( 14 ) SINCE in Ex. A-7 (case sheet) the age of first respondent is shown as 35 years, the multiplier would be 15. Since the evidence of p. W. 2 shows that the first respondent suffered disability of 30% which hampers his earning capacity as a toddy-tapper, first respondent is entitled to compensation towards disability and loss of earnings due to the said disability. Rs. 1,500/- per month fixed by the Tribunal, as the income of the first respondent, is reasonable and so his annual income would be Rs. 18,000/ -. Since compensation for 100% disability would be rs. 2,70,00/-, compensation for 30% disability suffered by first respondent would be rs. 81,000/ -. ( 15 ) APART from the loss of earnings, since first respondent would have some inconvenience due to that disability, he can be awarded Rs. 9,000/- extra, to make a total of Rs. 90,000/- towards continuing disability and loss of earnings. ( 16 ) THUS, first respondent would have been entitled to Rs. 10,000 +18,000+9,000+5,000+90,000 = Rs. 1,32,000/ - as compensation for the injuries suffered by him in the accident, but since I held on point no. 9,000/- extra, to make a total of Rs. 90,000/- towards continuing disability and loss of earnings. ( 16 ) THUS, first respondent would have been entitled to Rs. 10,000 +18,000+9,000+5,000+90,000 = Rs. 1,32,000/ - as compensation for the injuries suffered by him in the accident, but since I held on point no. 1 that the accident occurred due to 60% negligence on the part of the driver of the scooter on which the first respondent was travelling, and due to 40% negligence on the part of the driver of the bus belonging to the appellant i. e. R. W. I, and since appellant did not make the owner and insurer of the scooter parties to the O. P. , he is entitled only to 40% of the compensation arrived at from the appellant, i. e. , Rs. 52,800/-, which can be rounded off to Rs. 55,000/ -. ( 17 ) THEREFORE, I hold that first respondent is entitled to Rs. 55,000/- as compensation for the injuries suffered by him in the accident. The point is answered accordingly. ( 18 ) IN the result, the appeal is allowed in part. The Award passed by the Tribunal is modified. An Award is passed for rs. 55,000/- in favour of the first respondent against the appellant with interest at9% per annum from the date of registration of the petition till the date of deposit with proportionate costs in the Tribunal. Rest of the claim of the first respondent is dismissed without costs. Parities are directed to bear their own costs in this appeal.