Research › Search › Judgment

Andhra High Court · body

2011 DIGILAW 907 (AP)

K. v. Harikumar VS APSRTC

2011-10-21

G.BHAVANI PRASAD

body2011
JUDGMENT 1. The civil miscellaneous appeal is directed against the award in O.P.No.35 of 2001, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Hindupur, dated 04.11.2004. 2. The appellant was travelling on a Hero Honda motor cycle on 31.01.2001 at about 7.30 a.m. when Andhra Pradesh State Road Transport Corporation (for short, ‘APSRTC’) bus No.AP 9Z 6425, driven rashly and negligently at high speed, dashed the motor cycle from behind near Gurunatha Theatre, Hindupur. The appellant claimed to have suffered severe injuries and to have been treated first at Teja Nursing Home and then at Government Hospital, Hindupur and later at St. Johns Medical College Hospital, Bangalore. In spite of inpatient treatment for 20 days, the appellant claimed to be still bed ridden and to be permanently disabled. He claimed to have incurred an expenditure of Rs.70,000/- and to have lost an income of Rs.15,000/- per month as LIC Agent. The Hindupur I Town Police registered Crime No.11/2001 against the driver of the bus and, hence, he sought for a compensation of Rs.2,00,000/- from the APSRTC. 3. The respondent corporation denied any negligence on the part of its driver and contested the claim as exorbitant. The bus was claimed to be coming very slowly when the appellant himself was claimed to have driven the motor cycle rashly and negligently taking a turn to the wrong side and applying sudden brakes to hit the bus. The sustaining of any injuries by the appellant was, hence, contended to be not the responsibility of the bus driver. 4. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation and during the course of enquiry, it examined P.Ws.1 and 2 and R.W.1 and marked Exs.A-1 to A-7. 5. The Tribunal rendered the impugned award referring to the rival contentions and evidence and opined that this was a case of oath against oath by P.W.1 and R.W.1 and as the bus hit the motor cycle from behind, contributory negligence on the part of the appellant is also shown. However, in the light of the principles laid down in SHAHJADI BEE VS. However, in the light of the principles laid down in SHAHJADI BEE VS. MD, APSRTC, MUSHEERABAD, HYDERABAD ( 2003 (5) ALD 127 (DB), wherein it was held that the claimants need not prove rash and negligent driving of the vehicle and it is sufficient to prove that the accident took place while the vehicle is being used on the road, the Tribunal considered the corporation to be vicariously liable for the injuries sustained by the appellant. In assessing the compensation, the Tribunal noted the injuries, spoken to by P.W.2, out of which, injuries 3 and 6 were grievous in nature, while the other injuries were simple. The Tribunal also noted the course of treatment undergone by the claimant and found Ex.A-7-Medical Bills to be not acceptable as no prescription for purchase of medicines was filed and no date was mentioned in the said bills by the medical shop. The medical bills were found to be having the same serial number and to have been prepared on the same day without any date. The bills to a tune of Rs.26,754/- were, therefore, not acted upon and the Disability Certificate in Ex.A-2 also noted only a temporary disability. Therefore, the Tribunal granted a lump sum compensation of Rs.50,000/- with interest at 6% per annum. 6. The claimant preferred the present appeal contending that the grievous injuries, the scar left on the left arm of the appellant which requires a surgery, the expenses incurred towards treatment to a tune of Rs.70,000/- and the disability certified at 20% in Ex.A-2 should have been taken into consideration and while granting the entire compensation as claimed, interest also should have been awarded at 12% per annum. The claimant, therefore, desired the impugned award to be reversed. 7. Heard Sri Kothapalli Ram Mohan Chowdary, learned counsel for the appellant and Sri Anand Shinde, learned counsel representing Smt. W.V.S. Rajeswari, learned standing counsel for the respondent. 8. Insofar as the finding of the Tribunal about the vicarious liability of the corporation to justly and adequately compensate the appellant for the injuries sustained in the accident and their consequences is concerned, the corporation did not prefer any cross appeal or cross objections and the same became final. Therefore, it is only the quantum that is in question herein. 9. Therefore, it is only the quantum that is in question herein. 9. The evidence of P.W.2, who treated the petitioner/claimant at Bangalore, specifically spoke about six injuries found on the person of the appellant out of which, injury Nos. 3 and 6 were grievous which involved three fractures. The inpatient treatment for eight days was stated, by P.W.2, to have costed the appellant as per the computer bills issued by the hospital of P.W.2, i.e., St. Johns Medical College Hospital, Bangalore. P.W.2 also spoke about the necessity for a further surgery involving skin grafting for removal of a scar on the hand at a cost of Rs.25,000/-and he also spoke about the requirement for frequent treatment of the appellant as out-patient upto one year later also. The doctor also stated that itching and pain continue to remain unless the scar is removed and these aspects were not taken into account by the Tribunal in fixing the lump sum compensation. Even assuming that the evidence of the appellant as P.W.1 is tainted with interestedness, the independent evidence of the doctor from the super speciality hospital in Bangalore need not have been totally ignored in fixing the amount of compensation. 10. If there were three fractures and three more simple injuries which were suffered by the appellant in the accident, the compensation for pain and suffering, even according to the Second Schedule to the Motor Vehicles Act, 1988, would have been Rs.18,000/-and in petitions under Section 166 of the Act, the conventionally granted sums towards such pain and suffering are much higher. While an element of guess and estimate is inevitable in arriving at an appropriate figure of damages under that head, taking the facts and circumstances into account, award of Rs.30,000/-towards pain and suffering may be just compensation under that head. Insofar as the medical bills are concerned, it is true that the bills issued by Balaji Medical Stores, Hindupur, appear to be with continuing serial numbers without any dates and are, therefore, doubtful, as opined by the Tribunal itself. However, the computer bills issued by St. Johns Medical College Hospital, Bangalore, which were said to be genuine by P.W.2, the doctor, in his evidence, need not have been disbelieved in the absence of any convincing reason and a close look at the bills issued by the said hospital does not suggest any scope for fabricating such bills. However, the computer bills issued by St. Johns Medical College Hospital, Bangalore, which were said to be genuine by P.W.2, the doctor, in his evidence, need not have been disbelieved in the absence of any convincing reason and a close look at the bills issued by the said hospital does not suggest any scope for fabricating such bills. The appellant is entitled to be compensated for the medical expenses incurred, expenses for extra nourishment, attendant charges during the period of hospitalization, expenses of transport, damage to clothing in the accident and other miscellaneous heads of pecuniary and non-pecuniary damages and in the absence of any specific oral or documentary evidence in this regard, except the bills issued by St. Johns Medical College Hospital, Bangalore, the total sum to be awarded under various heads can be reasonably arrived at a sum of another Rs.30,000/-. The appellant claimed to be working as LIC Agent for his livelihood and the very nature of the fractures and the course of treatment would have disabled him from carrying on his avocation at least for a period of about six weeks to eight weeks and the evidence of P.W.2 also discloses that he would require further treatment as out-patient for some more time to come out of the pain and itching which still remain after the treatment. While there is no material to show that any skin grafting or other treatment was taken after the accident upto date for removal of any scar, these circumstances have to be taken into account in awarding an appropriate sum towards loss of earnings, the need for future treatment, etc., and granting a sum of about Rs.15,000/-would be reasonable and just under these heads. The total compensation to which the appellant would have been entitled, if the pecuniary and non-pecuniary damages have been separately assessed, would have been, thus, about Rs.75,000/-. Therefore, the compensation awarded by the Tribunal needs to be enhanced to that extent. Interest on the enhanced portion of the compensation also can be at the same level of 6% per annum granted by the impugned award. 11. Therefore, the compensation awarded by the Tribunal needs to be enhanced to that extent. Interest on the enhanced portion of the compensation also can be at the same level of 6% per annum granted by the impugned award. 11. Accordingly, the award, dated 04.11.2004, in O.P.No.35 of 2001, on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Hindupur, is modified by awarding a further compensation of Rs.25,000/-with interest thereon at 6% per annum from the date of the petition till the date of realization, in addition to the compensation already awarded by the impugned award and the Civil Miscellaneous Appeal is allowed, accordingly, in part without any costs.