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2024 DIGILAW 421 (AP)

APSRTC v. Kota Leelavathi

2024-04-03

A.V.RAVINDRA BABU

body2024
JUDGMENT : A.V. Ravindra Babu, J. 1. Challenge in this Motor Accidents Civil Miscellaneous Appeal is to the order, dated 18.01.2016, in M.V.O.P. No.253 of 2012 on the file of Chairman, Motor Accidents Claims Tribunal- cum-VIII Additional District and Sessions Court (FTC), East Godavari, Rajahmundry (for short, 'the Tribunal') whereunder the Tribunal, while dealing with the claim of compensation sought by the claimant towards the injuries sustained by her in a motor vehicle accident, which was occurred on 05.07.2011, awarded a sum of Rs.3,66,200/- towards compensation. 2. The appellant/APSRTC, aggrieved by the aforesaid order, filed the present Appeal. 3. The parties to this Appeal will hereinafter be referred to as described before the Tribunal, for the sake of convenience. 4. The case of the claimant, in brief, according to the averments set out in the claim, before the Tribunal, is that on 04.07.2011 night petitioner and her mother Kota Varalakshmi boarded APSRTC bus bearing No.AP 28 Z 4342 (hereinafter referred to as 'offending vehicle') at Ramachandrapuram to go to Guntur for coolie work. At about 02:00 AM early hours of 05.07.2011 when the offending vehicle reached near sugar factory, opposite to NH-16 road at Surappagudem village, 1st respondent driver of the offending vehicle, drove the same in a rash and negligent manner without blowing horn, at high speed and dashed Lorry bearing No.AP 5 TT 5859 on its rear side, which was stationed by the side of the road. As a result, petitioner, her mother and six others sustained grievous and fracture injuries. The accident was occurred due to rash and negligent driving of the offending vehicle by the 1st respondent. A case in Crime No.124 of 2011 was registered against 1st respondent under Sections 338 and 337 IPC. Petitioner sustained grievous and fracture injuries viz., amputation of left leg above knee, face, right ear, right collar bone, right thigh fracture, right hand lower arm and injuries all over the body. There is 100% permanent disability due to the amputation of left leg. Her marriage prospects were deteriorated. She was shifted to GGH, Eluru and from there to GGH, Vijayawada. She was in patient for two months. Operations were done and POP was done. She spent more than Rs.50,000/- towards medical expenses. There is 100% permanent disability due to the amputation of left leg. Her marriage prospects were deteriorated. She was shifted to GGH, Eluru and from there to GGH, Vijayawada. She was in patient for two months. Operations were done and POP was done. She spent more than Rs.50,000/- towards medical expenses. Due to the injuries sustained in the accident, she sustained permanent disability due to amputation of left leg above knee and she lost her earnings of Rs.6,000/- per month by doing tailoring work and coolie work due to the disability. 1st respondent being driver of the offending vehicle and 2nd respondent being employer of 1st respondent are jointly and severally liable to pay the compensation. 5. First respondent remained ex parte. 6. Second respondent/APSRTC got filed a counter contending in substance that the petitioner has to prove the rash and negligent act in the manner as set out in the Petition and the medical expenditure incurred and that her entitlement towards the compensation. On 04.07.2011 the first respondent was driving the offending vehicle slowly. When the vehicle reached Bhimadolu, first respondent found a Lorry parked on the left side of the road but not on the road margin and when he tried to overtake the parked lorry, a vehicle came in their opposite direction. First respondent applied sudden brakes and tried to stop the bus but the bus hit the lorry. There was no negligence on the part of the first respondent. Accident was occurred on account of the rash and negligent act of the driver of the lorry. Hence, the claim is to be dismissed. 7. The Tribunal, on the basis of the aforesaid pleadings, settled the following issues for trial: 1. Whether the accident was occurred due to rash and negligent driving of R.1 in driving APSRTC bus bearing No.AP 28 Z 4342? 2. Whether the petitioner is entitled for compensation as claimed, if so, to what amount and against whom? 3. To what relief? 8. During the course of trial on behalf of the claimant before the Tribunal, PWs.1 to PW.3 were examined and Exs.A-1 to A-6 and Ex.B-1 were marked. On behalf of the contesting second respondent, the first respondent/driver was examined as RW.1 but no documents were marked on his behalf. 9. 3. To what relief? 8. During the course of trial on behalf of the claimant before the Tribunal, PWs.1 to PW.3 were examined and Exs.A-1 to A-6 and Ex.B-1 were marked. On behalf of the contesting second respondent, the first respondent/driver was examined as RW.1 but no documents were marked on his behalf. 9. The Tribunal, on hearing both sides and after considering the oral and documentary evidence on record, answered the issues in favour of the claimant and against the contesting second respondent/APSRTC and awarded a sum of Rs.3,66,200/- as compensation. 10. Feeling aggrieved by the aforesaid order, the un-successful second respondent/APSRTC filed the present Appeal. 11. Now in deciding the present Appeal, the point that arises for consideration is: Whether the order of the Tribunal in M.V.O.P. No.253 of 2012, dated 18.01.2016, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VIII Additional District and Sessions Court (FTC), East Godavari, Rajahmundry in awarding compensation of Rs.3,66,200/- against the original claim of Rs.6,00,000/- is sustainable under law and facts and whether there are any grounds to interfere with the same? POINT: 12. Sri Vinod Kumar Tarlada, learned Standing Counsel for the appellant/APSRTC, would contend that though there was rash and negligent act on the part of the driver of the lorry, who parked the vehicle on the left side of the road, the Tribunal erroneously held that the accident occurred was on account of the first respondent's act which is not tenable. The Tribunal considered the compensation on higher scale as such the order needs to be interfered. 13. Smt. Vasavi Ratna Kumari, learned counsel for the first respondent/claimant, would contend that the Tribunal rightly held that the accident was occurred on account of the rash and negligent driving of the first respondent in driving the APSRTC bus. The first respondent did not contest the claim and he remained ex parte. RW.1 admitted about filing of charge sheet against him. So, the claimant was able to prove the rash and negligent driving of the first respondent and the Tribunal awarded just compensation which needs no interference. 14. As seen from the evidence of PW.1, who was no other than the injured, she put forth the facts in tune with her chief- examination affidavit. Through her examination, Exs.A-1 to A-6 were marked. 14. As seen from the evidence of PW.1, who was no other than the injured, she put forth the facts in tune with her chief- examination affidavit. Through her examination, Exs.A-1 to A-6 were marked. When it comes to cross-examination, she denied that the accident was not occurred on account of the rash and negligent act of first respondent. Though RW.1 stepped into witness box, in support of the contention that there was no negligence on his part but there is no dispute that the Police after investigation filed a charge sheet against the first respondent alleging rash and negligent act. So, there was proper evidence adduced by the claimant to prove the rash and negligent act against the first respondent. RW.1 categorically admitted that a criminal case was registered against him before the Magistrate relating to the incident which is pending. Hence, the Tribunal rightly held that the accident occurred was due to the rash and negligent act of the first respondent. 15. Coming to the quantum of compensation, though the claimant made a claim for Rs.6,00,000/- but the Tribunal considered to award a sum of Rs.3,66,200/-. Though the claim of the claimant was that she sustained 80% disability, the Tribunal found that though she pleaded that her right leg was amputated but the Doctors i.e., PW.2 and PW.3 did not testify the same. However, the Tribunal looking into Ex.A-6 was of the view that the disability was not that of entire body and it was to the extent of left lower limb as such considered the disability only as 40%. The Tribunal made a finding that PWs.2 and PW.3 did not testify that there was amputation of left leg. 16. As evident from Ex.A-6 - disability certificate issued, the disability was on account of the post traumatic amputation. As against the findings of the Tribunal that there was only 40% disability, there is no cross-appeal or cross-objection filed. Hence, the disability that was considered by the Tribunal to an extent of 40% is towards the whole body. The finding of fact recorded by the Tribunal was that the petitioner did not prove the left leg amputation. As pointed out, Ex.A-6 proves the post traumatic amputation. Under the said circumstances, the disability of 40%, as fixed up by the Tribunal cannot be said to be excessive under any circumstances. The finding of fact recorded by the Tribunal was that the petitioner did not prove the left leg amputation. As pointed out, Ex.A-6 proves the post traumatic amputation. Under the said circumstances, the disability of 40%, as fixed up by the Tribunal cannot be said to be excessive under any circumstances. So, 40% disability fixed up by the Tribunal cannot be taken as excessive. The Tribunal considered the notional income of the injured as that of Rs.100/- per day. The Tribunal arrived at the earnings of the injured as that of Rs.36,000/- per annum and applied the relevant multiplier applicable to the age group of the petitioner, which is 18 and arrived at the total earnings as Rs.6,48,000/- and considering the functional disability as 40%, arrived at Rs.2,59,200/- towards loss of earning power due to disability. The Tribunal further awarded a sum of Rs.75,000/- towards pain, suffering and mental agony Rs.12,000/- towards loss of income, Rs.10,000/- towards extra nourishment and Rs.10,000/- towards transportation and incidental charges. Accordingly, the Tribunal awarded a total sum of Rs.3,66,200/- towards compensation to the petitioner, which cannot be said to be on higher side. 17. Having regard to the above, absolutely, there are no merits in the grounds of Appeal as such the Appeal is liable to be dismissed. 18. In the result, the Motor Accident Civil Miscellaneous Appeal is dismissed confirming the order, dated 18.01.2016, in M.V.O.P. No.253 of 2012 on the file of Chairman, Motor Accidents Claims Tribunal-cum-VIII Additional District and Sessions Court (FTC), East Godavari at Rajahmundry. The appellant/APSRTC is directed to deposit the rest of the compensation amount, if any, within a period of one month from this date. On such deposit, the first respondent/claimant is permitted to withdraw the same. No order as to costs. Consequently, Miscellaneous Applications pending, if any, shall stand closed.