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2014 DIGILAW 529 (AP)

A. P. S. R. T. C. v. Donteboina Subba Rao

2014-04-09

U.DURGA PRASAD RAO

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JUDGMENT U. Durga Prasad Rao, J. 1. Challenging the award dated 14.09.2005 passed in M.V.O.P. No. 539 of 2000 by the Chairman, MACT-cum-Principal District Judge, Khammam (for short "the Tribunal), the appellant-APSRTC preferred the instant appeal. The factual matrix of the case is thus: (a) The claimant and one Kopula Venkateswara Rao (R.3) were proceeding on a TVS Suzuki from Kondakodima Village to Rebbavaram on 21.12.1999 and when they reached near Gannavaram crossroads, the 1st respondent, driver of the APSRTC bus bearing No. AP 9 Z 5388 drove the vehicle in a rash and negligent manner and dashed against the TVS Suzuki, due to which, the claimant suffered fracture of left leg below the knee (both bones), fracture of left foot (crush injury) and other simple injuries all over the body. Immediately, he was shifted to Government Hospital, Khammam where he took treatment for two months and then in NIMS Hospital, Hyderabad for 17 days and thereafter in Nagarjuna Hospital, Vijayawada, where he was treated for one month and later in Private Nursing Home, Khammam. It is averred that due to the accident, the claimant suffered untold bodily pain, suffering and mental agony. On these pleas claimant filed MVOP No. 539 of 2000 against respondents 1 and 2, who are driver and APSRTC and respondents 3 & 4, who are owner and insurer of TVS Suzuki and claimed Rs. 3,00,000/- as compensation towards general and special damages. (b) Respondent No. 1 did not file any counter. (c) Respondents 2 to 4 filed separate counters and denied the material. averments made in the petition and urged to put the claimant in strict proof of the same. R.2 denied the method and manner of occurrence of accident and fault of the bus driver. It contended that the accident was occurred due to the fault of rider of the motorcycle as he while negotiating the curve got confused on seeing the RTC bus approaching in the opposite side and fell in a roadside water ditch and the bus did not hit the motorcycle at all. R.3 contended that as the vehicle was insured with R. 4/Insurance Company, it is liable to pay the compensation. R.3 contended that as the vehicle was insured with R. 4/Insurance Company, it is liable to pay the compensation. R.4 contended that there was no negligence on the part of the rider of the TVS Suzuki motorcycle and as per the criminal records, the accident was occurred due to the fault of the 1st respondent/driver of the offending bus. R.4 further contended that the compensation claimed is highly excessive and exorbitant. (d) During trial P.Ws. 1 and 2 were examined and Exs. A1 to A6 were marked on behalf of the claimant. RWs. 1 and 2 were examined and Ex. B.1 was marked on behalf of respondents. (e) A perusal of the award shows that considering the oral evidence of P.W.1--the complainant-cum-victim in the accident and also the documentary evidence Ex. A1-FIR and Ex. A3 charge sheet the Tribunal held that the accident was occurred due to the rash and negligent driving of the 1st respondent/driver of the offending bus. (f) Coming to the quantum of compensation, the Tribunal considering the evidence of P.W.2--Dr. T. Madan Singh and other medical evidence held that the claimant suffered grievous injuries and accordingly granted compensation of Rs.1,18,000/- under different heads as below: Loss of earnings due to disability Rs. 45,000/- For fracture Rs. 35,000/- For simple injury Rs. 2,500/- Medical expenses Rs. 28,000/- Pain and suffering Rs. 7,500/- _________________ Total Rs. 1,18,000/- _________________ Thus the Tribunal granted total compensation of Rs. 1,18,000/- with interest at the rate of 9% per annum from the date of petition till the date of realisation against the respondents 1 and 2. The Tribunal' exonerated the respondents 3 and 4 as the rash and negligent driving on the part of 3rd respondent was not established. Hence, the appeal by APSRTC. 2. Heard arguments of Smt. P. Rajani, learned counsel for appellant- APSRTC and Sri Nisaruddin Ahmed Jeddy, learned counsel for 4th respondent-Insurance Company. R.1--claimant did not advance any arguments. Case against R.3 was dismissed for default. 3(a). Impugning the award learned counsel for appellant firstly argued that the Tribunal erred in holding that the accident was occurred due to the fault of driver of the APSRTC. R.1--claimant did not advance any arguments. Case against R.3 was dismissed for default. 3(a). Impugning the award learned counsel for appellant firstly argued that the Tribunal erred in holding that the accident was occurred due to the fault of driver of the APSRTC. The facts and evidence would show that there was a curve at the place of accident and the rider of the motorcycle while negotiating the curve became confused on seeing the RTC bus approaching in the opposite direction in the last moment and thereby went and fell in a roadside water ditch. Learned counsel argued that in that process, the bus did not hit the motorcycle at all and there was no fault of the bus driver. Though RW.1--the bus driver vividly deposed these facts, the Tribunal failed to appreciate his evidence on the ground that he was an interested witness. Learned counsel submitted that the RW.1 being the bus driver, a right person to speak about the method and manner of occurrence of the accident. Hence, the Tribunal ought to have accepted his evidence and held that fault lies with the motorcycle rider or atleast considering the fact that the accident took place when both the vehicles were negotiating the curve, should have held that the accident was occurred due to the contributory negligence of both the drivers and should have apportioned the liability. (b) Secondly, learned counsel argued that quantum of compensation awarded by the Tribunal under different heads is highly excessive and therefore, it needs to be suitably reduced. (c) Finally, he argued that the rate of interest granted at 9% p.a is highly excessive. He thus prayed to allow the appeal. 4. Per contra, learned counsel for R. 4/Insurance Company while supporting the award, argued that except the interested evidence of RW.1--the bus driver, the appellant has not examined any independent witnesses like bus passengers to establish the so-called innocence of the bus driver. Further there was no reason why bus driver did not give report to police setting out the true facts when there was no fault on his part. Learned counsel thus argued that the Tribunal rightly held that the bus driver was responsible for the accident and there is no need to review the said finding. He further submitted that as there was no fault of the rider of motorcycle, R.4 being its insurer cannot be fastened with any liability. Learned counsel thus argued that the Tribunal rightly held that the bus driver was responsible for the accident and there is no need to review the said finding. He further submitted that as there was no fault of the rider of motorcycle, R.4 being its insurer cannot be fastened with any liability. He thus prayed to dismiss the appeal. 5. In the light of above divergent arguments, the point for determination in this appeal is: "Whether the award passed by the Tribunal is factually and legally sustainable?" 6. POINT: The accident, involvement of APSRTC bus and TVS Suzuki motorcycle and the injuries sustained by the claimant are all admitted facts. As already stated supra, the Tribunal gave a firming that the RW.1--bus driver was responsible for the accident. Since the same is challenged in this appeal, the evidence has to be scrutinized to decide whether the finding of Tribunal is correct or not. 7. P.W.1--the claimant deposed that he was the pillion rider and the Kopula Venkateswarlu was riding the motorcycle. He further deposed that when they were proceeding on their TVS Suzuki from Kondakodima village to Rebbavaram and when they reached near Gannavaram cross-roads the offending bus came in the opposite direction being driven by its driver in a rash and negligent manner and dashed their TVS Suzuki and caused the accident. In the cross-examination, he admitted that there was a curve at the accident place. However he denied the Suggestion that while negotiating the curve, the rider of the motorcycle confused and fell down and the bus did not dash the motorcycle, This is the evidence of P.W.1 with regard to the manner of occurrence of the accident. Then RW.1--the bus driver, deposed that the bus belonged to Madhira Depot and it was being plied to Gannavaram and Wyra and when the bus reached to Kondakodima cross-roads, he slowed down the bus in order to negotiate a right turn and while he was negotiating the turn by blowing the horn, the petitioner's motorcycle came in the opposite direction being driven by the petitioner at high-speed and in a rash and negligent manner without observing the bus and the rider of the motorcycle, observing the bus only at the last moment, got confused and drove the motorcycle on the wrong-side and fell in a roadside water ditch. RW.1 further deposed that the bus never hit the motorbike. RW.1 further deposed that the bus never hit the motorbike. He claimed that the accident was occurred due to the fault of the rider of the motorcycle only. He denied the suggestion that the accident was occurred due to his fault. 8. Thus a perusal of the above rival evidence would show that both P.W.1 and RW.1 deposed in tune with their respective claims. The admitted point in their evidence is that the accident was occurred when both the vehicles were negotiating a curve. Since the two witnesses are speaking in tune with their respective pleadings, we have to see whether any independent evidence is available which is trustworthy. Though not the oral evidence, Ex. A.2--charge sheet is available in this regard and it shows that the police of Wyra P.S investigated the matter and filed the charge sheet against the bus driver. The charge-sheet is based on the evidence of some third-party witnesses. In the charge-sheet it is clearly mentioned that, the bus went and dashed against the Suzuki motorcycle. Though Ex. P.2 is not a substantive piece of evidence, still it corroborates the version of P.W.1 to the effect that the bus went and dashed the motorcycle. Thus it belies the claim of the RW.1 that the bus not at all hit the motorcycle. As rightly observed by the Tribunal, the appellant-APSRTC has not taken steps to examine any of the passengers in the bus who are third parties, to prove the fact that the bus driver was not at fault. Therefore, considering the evidence on record, it can be said that the bus driver was responsible for the accident. The Tribunal was right in deciding so. 9. The second contention of the appellant is that compensation awarded by the Tribunal under different heads is highly excessive and exorbitant. I have carefully perused the compensation awarded under different heads. It appears that in the backdrop of claimant suffering fracture of both bones of his left leg and also fracture to his second rib as is evident from Ex. A.3--wound certificate and also his taking prolonged treatment and suffering disability i.e., shortening of the leg, compensation of Rs. 1,18,000/- awarded by the Tribunal under different heads cannot be said to be excessive or exorbitant. Hence the contra argument of the appellant in this regard cannot be countenanced. 10. A.3--wound certificate and also his taking prolonged treatment and suffering disability i.e., shortening of the leg, compensation of Rs. 1,18,000/- awarded by the Tribunal under different heads cannot be said to be excessive or exorbitant. Hence the contra argument of the appellant in this regard cannot be countenanced. 10. So also the rate of interest at 9% p.a awarded by the Tribunal cannot be said to be high side since the appellant failed to produce any record to show that the said rate was much higher than the rate of interest granted by the nationalized banks during the relevant period. So at the outset I find no merits in the appeal. Accordingly, this appeal is dismissed by confirming the award passed by the Tribunal in MVOP No. 539 of 2000. No costs. As a sequel, miscellaneous applications pending, if any, shall stand closed. Appeal dismissed.