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MACMA_1347_2013
HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.1347 OF 2013
JUDGMENT:
1. Aggrieved by the order dated 05.09.2011 in MVOP No.1054 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge (Fast Track Court), Tanuku (for short 'the Tribunal'), the 2nd respondent/APSRTC represented by Vice Chairman & Managing Director, Hyderabad, has preferred this appeal questioning the quantum of compensation amount of Rs.3,00,000/- awarded by the Tribunal with proportionate costs and interest. For convenience the parties will be referred to as arrayed in the MV OP.
2. The claimant has filed a claim petition under Section 163(A) of the Motor Vehicles Act, 1988, r/w. Rule 455 of the AP Motor Vehicles Rules 1989 seeking compensation of Rs.4,00,000/- for injuries sustained in an accident held on 09.10.2008 at about 11.45 PM while travelling in an APSRTC bus bearing No. AP 28 Z 2784 from Vijayawada to Tanuku, along with her father, at Kanikaram Village on NH-5. The 1st respondent drove the bus rashly and negligently hit the stationed lorry, sustaining injuries to the left leg tibia and fibula of the right leg tibia and fibula and fracture injury to the left patella.
3. The 2nd respondent has filed a written statement contending that there is no rash or negligence on the part of the first respondent. At the time of the accident, it was dark; the lorry was parked in the road 2 MACMA_1347_2013 margin, there was no proper lighting, and a hook to the lorry on his backside margin came into contact with the passenger door of the bus, thereby it damaged. Some who were sitting unsteadily sustained injuries since they fell on the bus. As a result, there was no negligence on the part of the 1st respondent, and she prayed to dismiss the claim petition.
4. Based on the pleadings, the Tribunal has framed relevant issues. During the trial, on behalf of the claimants, P.Ws.1 to 5 got examined and marked Exs.A.1 to A.9. On behalf of the respondents, R.W.1 was examined. No documentary evidence was marked on behalf of the respondents. After considering the material evidence on record, the Tribunal has decided that the first respondent drove the bus rashly and negligently and was responsible for the accident, awarding compensation an amount of Rs.3,00,000/- with interest @ 9% per annum.
5. Heard learned counsel for the 2nd respondent, the appellant herein, and learned counsel for the claimant, who is the first respondent herein.
6. It is contended by the learned counsel for the 2nd respondent that the Tribunal has failed to consider that the driver of the lorry was alone responsible for causing the accident and the compensation amount fixed by the Tribunal is improper and also erred in granting interest @ 9% per annum.
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MACMA_1347_2013
7. Learned counsel for the claimant has supported the finding of the Tribunal.
8. Now the points for consideration are whether the Tribunal is justified in holding that the accident occurred due to the rash and negligent driving of the bus driver and whether the compensation fixed by Tribunal is just and reasonable.
POINT:
9. In support of the case, the claimant herself was examined as P.W.1. She deposed in her evidence about the manner of the accident. According to her evidence, while she, along with her father, was travelling in an APSRTC bus plying from Vijayawada to Tanuku, NH-5, when they reached Kaikaram Centre, Unguturu Mandal, the 1st respondent, who is the driver of the bus, drove in a rash and negligent manner, dashed against the stationed lorry. Based on the report lodged by the father of the claimant, a case in Crime No.155 of 2008 was registered against the bus driver. The attested copy of the FIR and complaint is marked as Ex.A.1. As seen from the record, the 2nd respondent/appellant has not disputed the claimant's case concerning sustaining injuries in the accident. It is also evident by Ex.A.2 - attested copy of the wound certificate. To prove the injuries suffered by her, the claimant examined the Civil Assistant Surgeon as P.W.5.
10. The 2nd respondent, during the cross-examination of P.W.1, has suggested that there is no negligence on the part of the 1st respondent. 4
MACMA_1347_2013 In the written statement, a plea is taken to the effect that at the time of the accident, it was dark without proper lighting. A hook to the lorry on the backside came into contact with the passenger door of the bus, thereby, the bus was damaged, and passengers sitting in the bus sustained injuries. From the suggestions put to the witness in the cross-examination and the pleas taken by the 2nd respondent, it is clear there is no dispute regarding the injuries sustained by the claimant and the involvement of the bus in an accident. In a claim petition filed under Section 163A of the Motor Vehicles Act, the claimant need not prove the rash and negligent driving on the part of the offending vehicle; it is enough to confirm that the claimant was travelling in the offending vehicle at the time of the accident and the involvement of the said offending vehicle in the accident. The stated facts are not disputed by the 2nd respondent. The facts are established by P.W.1, who sustained injuries in the accident and supported by Ex.A.1-attested copy of the FIR. There is no pleading while the lorry was proceeding in front of the bus, its driver suddenly applied the breaks. As per the earlier version lorry was parked and RW.1 without observing the same dashed against it. This Court is of the view that the contention raised by the 2nd respondent with regard to the negligence of the driver of the stationed lorry cannot be accepted. While dealing 5 MACMA_1347_2013 with the similar circumstances of the case between Bheemla Devi V. Himachal Road Transport Corporation1, the Apex Court held that "It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".
11. In a proceeding under the M.V.Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. A document having some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal to get a preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of the happening of the accident. The preponderance of probabilities is the touchstone for arriving at a conclusion regarding rashness and negligence, as well as the mode and manner of the accident.
12. The claimant has adduced the evidence to prove that the accident caused due to the rash and negligent driving of the offending vehicle's driver. Either negligence or contributory negligence must be proved like any other fact; there is a no different standard for proving 1 2009 ACJ 1725 (SC) 6 MACMA_1347_2013 negligence or contributory negligence. They cannot be decided on suspicion or surprise; pleas made in the counter will remain as pleas as they are not substantiated by acceptable, relevant and legal evidence. The manner in which the accident happened leaves no way of doubt that the driver of the offending vehicle was solely negligent in causing said accident. Thus this Court accepts the finding of the Tribunal that the accident occurred due to rash and negligent driving of the offending vehicle.
13. Regarding the quantum of compensation, the claimant has claimed compensation of Rs.4,00,000/-for the injuries sustained by her in the accident. To prove the injuries sustained by her, Dr.M.V.G.Tilak, who treated the claimant, was examined as P.W.4. He deposed that the claimant was admitted to Sri Krishna Bhaskar Hospital, Eluru, on 11.10.2008 with a history of RTAK, MLC and found 1) fractures to both the legs, left leg nailing was done with proximal and distal interlocking,
2) fracture medial malleolus open reduction and internal fixation was done, and 3) comminuted fracture of the patella, patellectomy was done, and discharged on 15.11.2008. He admitted that he issued Ex.A.2-wound certificate. As seen from the record, the claimant has produced the medical bills for Rs.35,000/- under Ex.A.6 and to prove that she underwent treatment as an inpatient from 11.10.2008 to 15.11.2008, produced the discharge summary under Ex.A.8. 7
MACMA_1347_2013
14. The claimant also examined P.W.3 - Dr A.V.Vara Prasad, who has been running Vamsi Super Specialty Hospital, Tanuku. According to the evidence of P.W.3, the claimant was admitted to the hospital on 12.09.2009 for inflected inter-locking nailing to the left tibia, and she was operated on the same day. Removal of implants was done, thorough debridement was done, bone grafting was done above the knee, a POP slab was applied, and the patient (claimant) was discharged on 24.09.2009 with prescribed medicines. The claimant produced medical bills for Rs.18,600/- and a discharge bill dated 24.09.2009. The 2nd respondent has not seriously disputed the authenticity and genuineness of the medical bills. Considering the medical record produced by the claimant, the learned Tribunal has awarded an amount of Rs.18,600/-towards medical expenses.
15. The claimant further contends that she had sustained permanent disability due to the injuries suffered in the accident. To prove the disability, the claimant examined P.W.2-Dr.M.Srinivasa Rao, a member of the Medical Board, Eluru. P.W.2 testified that he issued a disability certificate Ex.A5 assessing the petitioner's disability @ 50%; from the said evidence of P.W.2, coupled with other medical evidence placed before the Tribunal, the disability of the claimant can be assessed @ 50%. Though the claimant contends that she earns Rs.6,000/-per month by doing milk vending business, the Tribunal has discarded the contention and considered the claimant's annual income Rs.15,000/- 8
MACMA_1347_2013 per annum. After perusal of the reasons recorded by the Tribunal, this Court feels that the Tribunal discarded the evidence without giving good reasons. Simply because the claimant was unmarried, it cannot presume that the claimant would not earn the amount by doing milk business. In the facts of the case, the observation of the Tribunal that the claimant is not expected to earn money because of being unmarried does not stand for legal scrutiny. The notional income would be assessed at Rs.30,000/- per annum. In the case on hand, a claimant is a person aged 23 years, and the possibility of earning Rs.30,000/-per annum by doing a milk business cannot be ruled out. Upon careful perusal of the material evidence on record, this Court views the Tribunal wrongly considering the claimant's earnings only at Rs.15,000/- per annum instead of Rs.30,000/-. As there is still a lot of life to enjoy, this Court believes that 50% of the functional disability can be assessed.
16. The schedule under Section 163A of the Motor Vehicles Act, for persons aged above 20 but not exceeding 25, indicates the appropriate multiplier as '17' and thus, the total loss of functional disability of the claimant can be assessed @ Rs.30,000 x 17 x 50% = Rs.2,70,000/-as it can be seen from the record that the claimant has produced medical bills. Since the claimant filed the claim petition under Section 163A of the Act, this Court is of the view that only an amount of Rs.15,000/- is to be awarded towards medical expenses and Rs.15,000/- towards 9 MACMA_1347_2013 injuries sustained by the claimant and thereby, the total compensation arrived at Rs.2,70,000+30,000=3,00,000/-.
17. The learned counsel for the 2nd respondent mainly contended that the Tribunal had granted interest @ 9% per annum, and the rate of interest given by the Tribunal is excessive and on higher side and the interest is to be scaled down. No material is placed to show that interest awarded is not on par with the guidelines of RBI on the date of occurrence. The 2nd respondent has not placed the evidence regarding the rate of interest prevailing as on the date of accident. In United India Insurance Co. Ltd., v. Satinder Kaur and others 2 in a case where the tribunal allowed interest at 9% per annum and the High Court observed it appropriate to direct the interest at the rate of 12% per annum be paid on the total compensation awarded. The granting of rate of interest depends on the facts and circumstances of the case. It cannot be said that the rate of interest cannot be exceeded to more than 7.5% per annum. Based on the facts of the case the tribunal awarded the interest at the rate of 9% per annum. As such I am not inclined to interfere with the rate of interest awarded by the tribunal.
18. Given the aforementioned discussion, I do not find any substance in the appeal or reason to interfere with the impugned order in the present appeal. Accordingly, the appeal is devoid of merits and deserves to be dismissed. As a result, the appeal is dismissed without 2 2020 ACJ 2131 10 MACMA_1347_2013 costs and the order dated 5.9.2011 in MVOP No. 1054 of 2008 passed by the Chairman; Motor Accidents Claims Tribunal-cum-IV Additional District Judge (Fast Track Court), Tanuku, is hereby confirmed.
19. Miscellaneous Petitions if any pending in this appeal shall stand closed.
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T. MALLIKARJUNA RAO, J.
Dt.13.10.2022 BV