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2023 DIGILAW 380 (AP)

A. P. S. R. T. C. v. Nakkaboina Sreeenu

2023-02-14

B.V.L.N.CHAKRAVARTHI

body2023
JUDGMENT : The appeal in MACMA No.1002/2018 is preferred by the 1st respondent/APSRTC challenging the award dated 30.12.2016 passed in M.V.O.P.No.160/2015 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Guntur, wherein the Tribunal partly allowing the petition, awarded a compensation of Rs.2,12,453/-with interest @ 7.5% p.a. from the date of petition, till the date of realisation, for the injuries sustained by him in a motor vehicle accident. 2. The appeal in MACMA No.280/2021 is preferred by the claimant/petitioner, challenging the award dated 30.12.2016 passed in M.V.O.P.No.160/2015 on the file of Motor Accidents Claims Tribunal-cum-II Addl.District Judge, Guntur, wherein the Tribunal partly allowing the petition, awarded a compensation of Rs.2,12,453/-with interest @ 7.5% p.a. from the date of petition, till the date of realisation, for the injuries sustained by him in a motor vehicle accident. 3. For the sake of convenience, the parties are arrayed as parties before the tribunal. 4. As seen from the record, the claim petition was filed U/s.166 of the Motor Vehicles Act, 1988 (for brevity “the Act”) claiming a compensation of Rs.3,50,000/-on account of the injuries sustained by the petitioner, in a motor vehicle accident that occurred on 04.01.2015. 5. The facts show that on 04.01.2015 at about 10.30 p.m. while the petitioner was going on his auto bearing No.AP 07 TD 0298, 2nd respondent being the driver of APSRTC Bus bearing No.AP 28Z 516, drove the same in a rash and negligent manner, coming from opposite direction, came extreme side, and hit the auto near Ring Road Center, Macherla, Guntur District, and as a result, the said auto was badly damaged, and the petitioner sustained injuries. The petitioner was shifted to Government Hospital, Macherla, and the matter was reported to police, and SHO, Macherla Town P.S. registered the same as Cr.No.3/2015 U/s.337 of Indian Penal Code. The petitioner was earning Rs.10,000/-per month. As the condition of petitioner was critical, he was referred to Government General Hospital, Guntur. But the petitioner was brought to Katuri Medical College & Hospital, Guntur, where he was treated as in-patient from 05.01.2015 to 20.01.2015 and he underwent operation to his right thigh and drained out the clotted blood and pus by a procedure like incision and drainage on 12.01.2015 and he was given conservative line of treatment so far as other fracture injuries are concerned. Despite long treatment, his both hip joint movements are badly restricted and his right thigh portion became irregular in shape due to degloving injury. The petitioner is aged 30 years and suffered permanent disability. The petitioner is an auto driver and he became unfit for the above said work due to disability caused in the accident. The petitioner spent more than Rs.50,000/-for his treatment, and he has to spend huge amount for his future treatment. The petitioner lost his earning power in addition to the mental agony and suffering due to disability caused in the accident. 6. Before the Tribunal, the 1st respondent/APSRTC, filed a written statement resisting, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the petitioner, manner of accident, rash and negligence on the part of the driver of the offending vehicle, liability to pay compensation, and contended that there is no rash and negligence on the part of driver of APSRTC Bus bearing No.AP 28Z 516 at the time of accident. The accident occurred only due to rash, negligent and confusing state of mind of driver of auto bearing No.AP 07 TD 0298 i.e., the petitioner himself, who has not observed the traffic rules and regulations. The alleged accident occurred only due to head on collision of both the vehicles and contributory negligence of the petitioner. The petition is bad for non-joinder of proper and necessary parties i.e., owner and insurer of auto bearing No.AP 07 TD 0298. The petitioner has not sustained any permanent disability, and he can perform, his duties as usual and his earning capacity has not affected. The compensation claimed by the petitioner is highly excessive. The 2nd respondent remained exparte. 7. On the strength of the pleadings of both parties, the Tribunal framed the following issues: 1. Whether there is rash and negligent driving of the driver of the bus? 2. Whether accident occurred due to the negligence of the auto only? 3. Whether the petitioner is entitled for the compensation as prayed for? 4. To what relief? 8. To substantiate his claim, the petitioner examined P.Ws-1 and 2 and got marked Exs.A-1 to A-6 and Ex.X-1. No oral or documentary evidence was adduced on behalf of the 1st respondent. 9. Whether accident occurred due to the negligence of the auto only? 3. Whether the petitioner is entitled for the compensation as prayed for? 4. To what relief? 8. To substantiate his claim, the petitioner examined P.Ws-1 and 2 and got marked Exs.A-1 to A-6 and Ex.X-1. No oral or documentary evidence was adduced on behalf of the 1st respondent. 9. The Tribunal, taking into consideration the evidence of P.Ws-1 and 2, coupled with Exs.A-1 to A-6 and Ex.X-1, held that the accident took place due to the rash and negligent driving of the driver of crime bus bearing No. AP 28Z 516, and further, taking into consideration the evidence of P.Ws-1 and 2, corroborated by Exs.A-1 to A-6 and Ex.X-1, awarded a compensation of Rs.2,12,453/-with interest @ 7.5% p.a. from the date of petition, till the date of realisation. 10. The appeal in MACMA No.1002/2018 is filed by the APSRTC, who is 1st respondent in MVOP 160/2015 on the file of Motor Accident Claims Tribunal-cum-II Addl. District Judge, Guntur, assailing the order and decree dated 30.12.2016. 11. The appeal in MACMA No.280/2021 is filed by the claimant, who is petitioner in MVOP 160/2015 on the file of Motor Accident Claims Tribunal-cum-II Addl. District Judge, Guntur, assailing the order and decree dated 30.12.2016. 12. The contention of the APSRTC in MACMA No.1002/2018 is that the Tribunal erred in holding that the accident occurred due to rash and negligent driving of the driver of the APSRTC Bus bearing No.AP28Z 516 i.e., 2nd respondent in MVOP No.160/2015. The other contention of the APSRTC is that the accident occurred due to negligence of the claimant, who was driving auto at the time of accident. Further contention of the APSRTC is that the Tribunal erred in fixing the income of the claimant at Rs.10,000/-per month, and awarding a compensation of Rs.2,12,453/-without any evidence. 13. The contention of the claimant, who is appellant in MACMA No.280/2021 is that the Tribunal did not award just compensation to the claimant towards loss of earnings, though he suffered 30-35% permanent physical disability. . 14. In the light of the above contentions raised in both the appeals, the points that would arise for consideration in both the appeals are as under: 1. Whether the accident not occurred due to rash and negligent driving of the driver of the APSRTC Bus bearing No.AP28Z 516 (R-2)? 2. . 14. In the light of the above contentions raised in both the appeals, the points that would arise for consideration in both the appeals are as under: 1. Whether the accident not occurred due to rash and negligent driving of the driver of the APSRTC Bus bearing No.AP28Z 516 (R-2)? 2. Whether the Tribunal did not award just compensation to the claimant? 3. To what relief? 15. POINT No.1: The case of the claimant is that on 04.01.2015 at about 10.30 p.m. while he was going in his auto bearing No. AP 07 TD 0298, the 2nd respondent, who was driving APSRTC Bus bearing No.AP28Z 516, was coming from opposite direction. He drove the said bus in a rash and negligent manner, and hit the auto, while coming extreme wrong side. As a result, the auto was damaged, and the claimant sustained injuries. He was shifted to Government Hospital, Macherla, and he was referred to Government General Hospital, Guntur, and later to Katuri Medical College & Hospital, Guntur. He was treated there as in-patient from 05.01.2015 to 20.01.2015. He underwent one operation to right thigh on 12.01.2015, and he was given conservative line of treatment for other fracture injuries. His both hip joint movements are restricted, and right thigh portion became irregular in shape due to degloving injury, and he is unable to squat properly. He is unfit for the work which was doing at the time of accident. Therefore, he lost his total earning power in addition to mental agony and pain suffered due to the injuries sustained in the accident. Police registered a case in Cr.No.3/2015 for the offence punishable U/s.337 of Indian Penal Code, and after investigation laid police report (charge sheet) against the driver of the APSRTC Bus. 16. The contention of the APSRTC is that the accident occurred due to the rash and negligence of the claimant. He was driving auto at the time of accident without observing traffic rules, confused himself while he was speaking to his wife, who was also travelling in the auto. As a result, the accident was occurred. Therefore, the APSRTC is not liable to pay any compensation to the claimant. Further, the claimant did not suffer any permanent disability as claimed by him, and there is no loss of earning capacity on account of the injuries sustained by the claimant. 17. As a result, the accident was occurred. Therefore, the APSRTC is not liable to pay any compensation to the claimant. Further, the claimant did not suffer any permanent disability as claimed by him, and there is no loss of earning capacity on account of the injuries sustained by the claimant. 17. The claimant to prove his case, examined himself as P.W-1. In the chief-examination affidavit, he reiterated what was stated in the claim petition. He filed Exs.A-1 to A-6 documents. Ex.A-1 is copy of FIR in Cr.No.3/2015 of Macherla Town P.S. Ex.A-2 is copy of police report (charge sheet) laid in Cr.No.3/2015 of Macherla Town P.S. Ex.A-3 is copy of wound certificate of petitioner, which shows that the claimant had suffered four injuries, out of which, second injury restricted movement of right hip. No obvious deformity or external injury, and the third injury i.e., lumbo sacral pain mild are grievous in nature. Other two injuries i.e., abdomen guarding, no external injuries, and fourth injury i.e., incised wound below right knee, are simple injuries. It was issued by Katuri Medical College and Hospital, by one Dr.Shukur of the said hospital as Casualty Medical Officer. 18. P.W-1 was cross-examined by the APSRTC, contending that he was driving the auto in centre of the road without taking any precautions, and at that time, he was talking with his wife and therefore, the accident occurred due to his negligence. It was denied by P.W-1. The APSRTC did not elicit any other material to probablising that petitioner was driving the vehicle at the centre of the road, and that claimant was speaking to his wife at the time of accident and therefore, he could not notice the APSRTC bus coming in opposite direction, and as a result, he himself responsible for the accident. 19. The claimant filed Ex.A-1 copy of FIR presented by one Mr.J.Anilkumar narrating the way in which the accident occurred. Ex.A-2 is copy of police report (charge sheet) laid by the police after investigation against the driver of the APSRTC Bus opining that the accident occurred due to negligence of driver of APSRTC bus. Therefore, Ex.A-1 and Ex.A-2 are corroborating the testimony of P.W-1. Against this evidence, the APSRTC did not choose to examine its driver to speak about the way in which the accident occurred. Therefore, Ex.A-1 and Ex.A-2 are corroborating the testimony of P.W-1. Against this evidence, the APSRTC did not choose to examine its driver to speak about the way in which the accident occurred. In the said circumstances, there are no grounds to interfere with the finding of the Tribunal that the accident was occurred due to rash and negligence of driver of the APSERTC Bus bearing No.AP 28Z 516. Accordingly, this point is answered against the appellant in MACMA No.1002/2018. 20. POINT No.2: The contention of the claimant is that he suffered physical disability 30-35% on account of the injuries sustained in the accident, and therefore, he lost his earning capacity, and as such, he is entitled to loss of earnings due to permanent disability. 21. The claimant filed the claim petition making claim under the following heads: Sl.No. Description of the head Amount claimed in Rs. 1 Damages for pain and suffering 30,000.00 2 Damages for loss of amenities in life 30,000.00 3 Damages for permanent disability 30,000.00 4 Damages for medical expenses (present and future) Conveyance, extra nourishment and attendant charges and damages for motor cycle 60,000.00 5 Damages for loss of earning power (from the date of accident, till the date of commencement of trial) and future loss of earnings 2,00,000.00 Total 3,50,000.00 22. The Tribunal upon considering the material on record, awarded compensation as under: Sl.No. Description of the head Amount awarded in Rs. 1 Grievous injuries 30,000.00 2 Travelling expenses 9,453.00 3 Treatment expenses 10,000.00 4 Loss of earnings during the period of treatment 10,000.00 5 Loss of future earnings on account of permanent disability 1,53,000.00 Total 2,12,453.00 23. At this juncture, it is pertinent to note down that the Tribunal delivered its order on 30.12.2016. The Hon’ble Apex Court delivered judgment in the case of Raj Kumar Vs. Ajay Kumar and another in the year 2010 regarding the principles to be followed to award compensation in personal injury cases. The Tribunal did not refer any guidelines laid down in the judgment of the Hon’ble Apex Court, while determining the permanent disability, basing on the evidence of P.W-1 and P.W-2. 24. Ajay Kumar and another in the year 2010 regarding the principles to be followed to award compensation in personal injury cases. The Tribunal did not refer any guidelines laid down in the judgment of the Hon’ble Apex Court, while determining the permanent disability, basing on the evidence of P.W-1 and P.W-2. 24. As per the judgment of the Hon’ble Apex Court in Rajkumar’s case, the heads under which compensation is to be awarded in personal injury cases are as under: The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). 25. When coming to pecuniary damages (special damages), expenditure relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure, the claimant made a claim for Rs.60,000/-. The claimant in order to prove the said expenditure, filed Ex.A-5 bills issued by Sri Sai Car Travels. It appears that it pertains to the travelling expenses incurred by the claimant on 20.01.2015, 04.02.2015, and 19.02.2015 to go to Guntur and from Guntur to Macherla. The Tribunal as stated above granted a sum of Rs.9,453/-basing on Ex.A-5. The claimant did not produce any document with regard to expenses relating to treatment, hospitalisation, medicines, nourishing food and miscellaneous expenditure incurred by him at the relevant point in time. Therefore, there is no evidence in support of the claim for Rs.60,000/-under the head expenditure relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure, except Ex.A-5 towards transport charges. 26. The second head under pecuniary damages relating to loss of earnings (and other gains) which the injured would have made had he not been injured. It covers two aspects, one is loss of earning during the period of treatment: and another is loss of future earnings on account of permanent disability. 27. 26. The second head under pecuniary damages relating to loss of earnings (and other gains) which the injured would have made had he not been injured. It covers two aspects, one is loss of earning during the period of treatment: and another is loss of future earnings on account of permanent disability. 27. The claimant made a claim for Rs.30,000/-under the head damages for permanent disability. The Tribunal granted a sum of Rs.10,000/-towards loss of earnings during the period of treatment, as the claimant pleaded that he was earning Rs.10,000/-per month by running auto in Macherla Town. Therefore, it appears that the Tribunal considered his daily income at Rs.350/-per day by running auto in Macherla Town in the year 2015. The evidence on record shows that the claimant suffered two grievous injuries, and a small surgery was conducted, while fractures were treated conservatively. Therefore, awarding a sum of Rs.10,000/-towards loss of income during the period of treatment for one month cannot be held as excessive amount. 28. When coming to loss of future earnings on account of permanent disability, the claimant did not produce any disability certificate issued by Medical Board, but he examined the doctor, who treated him, as P.W-2. He deposed that he found a fracture superior and inferior pubic rami fracture on the right side, and fracture ala of left sacrum, and he also found deglowing injury of right thigh and other injuries, and that total number of injuries are five and all are grievous in nature, and a minor surgery was conducted and the fractures were treated conservatively, and the patient was discharged on 20.01.2015 from the hospital, and he also attended follow up treatment. He was of the opinion that patient may feel difficulty while squatting and sitting from standing position, and difficulty in sitting with cross legs, and muscle strength is decreased, and shorten end of 2 cm of right leg is there and it is a permanent disability and its extent is about 30-35%. 29. In the cross-examination, he admitted that except for deglowing injury, other injuries were treated conservatively, and at the time of discharge, all the injuries are healed and united. The superior and inferior pubim ramai are mall united, and as the malunion causes minimum difficulty only, and it does not require any further treatment. 29. In the cross-examination, he admitted that except for deglowing injury, other injuries were treated conservatively, and at the time of discharge, all the injuries are healed and united. The superior and inferior pubim ramai are mall united, and as the malunion causes minimum difficulty only, and it does not require any further treatment. The above disability is connected to particular limb only, and if it is taken into consideration of whole body, the disability would be reduced to some extent. Therefore, in the cross-examination, he admitted that when disability is applied to the whole body, it will be reduced to some extent only. It appears that the Tribunal considering this evidence opined that the percentage of permanent disability to the whole body can be arrived at 5% and awarded Rs.1,53,000/-towards loss of future earnings on account of permanent disability. In that view of the matter, this Court do not find any ground to interfere with the finding of the Tribunal on that aspect. 30. P.W-2 admitted in the cross-examination that the injuries does not require any further treatment, and at that time of discharge, all the injuries are healed and united. Therefore, the claimant is not entitled to any compensation towards future medical expenses. 31. When coming to non-pecuniary damages (general damages), the Tribunal awarded Rs.30,000/-towards pain, suffering and trauma as a consequence of injuries. This Court do not find any reason to interfere with the amount awarded by the Tribunal under this head, since two grievous injuries were sustained by the claimant. 32. The Tribunal did not award any amount to the claimant under the head loss of amenities (and/or loss of prospects of marriage). The evidence of P.W-1 and P.W-2 shows that on account of malunion, the claimant may feel difficulty for squatting and sitting from standing position, and also for sitting with cross legs. He may also feel pain while moving the right hip, as it was restricted due to shortening of right leg. In that view of the matter, this Court is of the opinion that a sum of Rs.1,00,000/-can be awarded to the claimant under the head loss of amenities (and/or loss of prospects of marriage), in view of the judgment of the Hon’ble Apex Court in the case of Raj Kumar Vs. In that view of the matter, this Court is of the opinion that a sum of Rs.1,00,000/-can be awarded to the claimant under the head loss of amenities (and/or loss of prospects of marriage), in view of the judgment of the Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343 , held as under: “In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life can be awarded”. 33. In the light of above discussion, the total compensation entitled by the claimant would be Rs.2,12,453 + 1,00,000 = Rs.3,12,453/-towards just compensation, instead of Rs.2,12,453/-, awarded by the Tribunal. 34. The Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of realisation. This Court do not find any ground to interfere with the rate of interest awarded by the Tribunal at 7.5% p.a., from the date of petition, till the date of realisation, in view of the Apex Court judgement in National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). Accordingly, this point is answered. 35. POINT No.3: To what relief? In the light of findings on points No.1 and 2, this Court is of the considered opinion that it is a fit case to modify partly the order and decree passed by the Tribunal. 36. In the result, the appeal in MACMA No.280/2021 filed by the claimant is partly allowed, by modifying the award dated 30.12.2016 passed in M.V.O.P.No.160/2015 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Guntur. It is held that the appellant/claimant is entitled to a total compensation of Rs.3,12,453/-(Rupees Three Lakhs, Twelve Thousand, Four Hundred and Fifty Three only) with interest @ 7.5% p.a. from the date of petition till the date of realisation, instead of Rs.2,12,453/-, awarded by the Tribunal. The respondents No.1 and 2 are jointly and several liable to pay the compensation amount. There shall be no order as to costs. 37. The respondents No.1 and 2 are jointly and several liable to pay the compensation amount. There shall be no order as to costs. 37. Consequently, the appeal in MACMA No.1002/2018 filed by the 1st respondent/APSRTC is dismissed. There shall be no order as to costs. 38. The 1st respondent/APSRTC is directed to deposit the entire compensation amount of Rs.3,12,453/-(Rupees Three Lakhs, Twelve Thousand, Four Hundred and Fifty Three only), awarded in MACMA No.280/2021 along with accrued interest thereon, within one month from the date of judgment. In the event of the 1st respondent/APSRTC already deposited some amount, the said amount has to be excluded, and the balance amount shall be deposited within one month from the date of judgment. 39. On such deposit, the claimant, who is appellant in MACMA No.280/2021 is permitted to withdraw entire compensation of Rs.3,12,453/-(Rupees Three Lakhs, Twelve Thousand, Four Hundred and Fifty Three only), along with the accrued interest thereon. As a sequel, miscellaneous applications pending, if any, shall stand closed.