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MACMA No.2351 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
M.A.C.M.A.No.2351 OF 2014
JUDGMENT:
This MACMA is filed under Section 173 of the Motor Vehicles Act, 1988 by the claimant seeking enhancement of compensation, aggrieved by the order and decree dt.17.09.2007 passed in M.V.O.P.No.41 of 2005 by the XVIII Additional Chief Judge, City Civil Court, Hyderabad (for short "the Court below").
2. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the Court below.
3. Brief facts of the case are that on 20.09.2004 at about 5 p.m., while the petitioner was proceeding on Suzuki Motorcycle bearing No. AP-28-S-1738 from Gowraram Village to Gajwel, and when he reached Muthrajpalli Crossroads, the driver of RTC Bus bearing No.AP-11-Z-486 drove it in a rash and negligent manner at high speed and hit the motorcycle of the petitioner in opposite direction, due to which, the petitioner fell down and sustained fracture and bleeding injuries all over his body. Immediately, he was shifted to Gandhi Hospital, Secunderabad and from there, he was shifted to Kamineni Hospital, L.B Nagar and was treated for his injuries for one day and was then shifted to NIMS Hospital, 2 RRN,J MACMA No.2351 of 2014 Punjagutta, he took treatment as in-patient from 22.09.2004 to 11.11.2004 and during that period, he underwent surgery on 18.10.2004 and 01.11.2004, DHS fixation left hip + 4mm Cancellous screw fixation is done and below knee pop slab applied. At the time of the accident, the petitioner was aged 33 years and was earning Rs.5,000/- p.m as an agriculturist. Due to the injuries, he is unable to do any work and sustained permanent disablement. Therefore, he laid the claim against the respondents seeking compensation of Rs.3,50,000/-.
4. The respondents filed a written statement denying the petition allegations and mainly contended that the accident was as a result of rash and negligent driving of the petitioner. Due to triple riding of the motorcycle, the rider of the motorcycle could not control the brake and the movement of the hands and thereby causing the accident.
5. The Tribunal framed the following issues:
i) Whether the petitioner sustained injuries in the accident that took place due to rash and negligent driving of the driver of the Bus bearing No.AP-11-Z1-486 by the respondent No.1 vehicle?
ii) Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
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MACMA No.2351 of 2014
iii) To what relief?
6. The petitioner to prove his case, examined PWs.1 to 3 and got marked Exs.A1 to A16. On behalf of the respondents, the driver of the Bus was examined as RW-1 but no document was marked.
7. After considering the oral and documentary evidence available on record, the Court below concluded that the petitioner contributed negligence in causing the accident and as such, the Court below fixed the ratio of negligence upon the driver of the Bus and the petitioner at 75:25 respectively and out of the amount which the petitioner was originally entitled to i.e Rs.1,50,000/-, the Court below awarded the petitioner Rs.1,12,500/- owing to his part of negligence at 25% (Rs.1,50,000/- - Rs.37,500/-) with proportionate costs and interest @ 7.5% per annum.
8. Heard both sides and perused the record.
9. Learned Counsel for the petitioner contended that the Court below erred in concluding that both vehicles are at fault but the charge sheet was laid against the driver of the RTC Bus alone. He also contended that the amounts awarded under various heads are also very meagre and 25% disability as per Ex.A14 was not considered along with the application of the multiplier method.
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MACMA No.2351 of 2014
10. Per contra, learned Counsel appearing for the
respondents would contend that the Tribunal was justified in fixing the compensation and the liability and prayed to dismiss the appeal.
11. The ground raised by the learned Counsel for the petitioner with regard to the liability being attributed to the petitioner owing to his contribution to the negligence which was assessed at 25% by the Court below is that the charge sheet was laid against the driver of the Bus and it is deemed that the driver of the bus himself was solely responsible for the accident. The Court below discussed the decision of this Court in United India Insurance Company Limited vs. K. Anjaih1, where in a case of an accident involving a lorry and a scooter which was being driven by its rider along with two pillion riders, this Court attributed contributory negligence on part of the driver of the scooter and assessed his part of liability at 25%.
12. As seen from the evidence on record, there is ample evidence to show that there were two pillion riders on the motorcycle being driven by the petitioner and the ground raised by the petitioner with regard to the charge sheet against the driver of the bus, cannot be taken into consideration in view of the decision 1 2004 (4) ALD 444.
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MACMA No.2351 of 2014
stated supra. When the very legislation under which the petitioner is claiming compensation is contravened by the petitioner along with the two pillion riders, the petitioner cannot expect the Courts to interfere with a legally sustainable order either sympathetically or otherwise, in order to evade from liability which accrued upon him due to the contributed negligence. Hence, this Court is not inclined to set-off the liability cast upon the petitioner as assessed by the Court below.
13. The Court below awarded Rs.6,000/- for extra- nourishment and Rs.20,000/- towards pain suffering. As the petitioner took treatment as in-patient from 22.09.2004 to 11.11.2004 and during that period, he underwent surgery on 18.10.2004 and 01.11.2004, DHS fixation left hip + 4mm Cancellous screw fixation done and below knee pop slab applied, this Court awards Rs.10,000/- towards extra-nourishment and Rs.30,000/- towards pain and suffering. The Court below also awarded Rs.5,000/- towards transportation, the same is enhanced to Rs.6,000/- in the circumstances that the petitioner had to travel to different hospitals and on multiple occasions. The Court below failed to award compensation under loss of amenities and the petitioner is awarded Rs.10,000/- as such. The Court below 6 RRN,J MACMA No.2351 of 2014 awarded Rs. 44,000/- altogether towards medical expenses, which is justified.
14. Learned Counsel for the petitioner further raised a ground vis-ā-vis the income of the petitioner, however, in the absence of any evidence, the Court below was justified in assessing the same at Rs.3,000/- p.m. The same was not considered by the Court below for the purpose of calculating future loss of earnings using the multiplier method as the Court below found that the petitioner was not permanently disabled. The evidence and findings would reveal that the injuries of the petitioner healed by the time of examination by the doctor and as such, the Court below awarded a lump sum of Rs.75,000/- towards loss of earnings and disability. There is no irregularity in such a conclusion, however, keeping in view the injuries sustained by the petitioner, this Court is enhancing the same Rs.1,00,000/-.
15. As such, this Court is of the considered view in granting compensation to the petitioner as against the compensation amount granted by the Tribunal as follows:
Head Amount awarded Amount
by Tribunal awarded/enhannced
by this Court
Extra nourishment Rs. 6,000/- Rs. 10,000/-
Loss of amenities Nil Rs. 10,000/-
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Loss of earrings Rs.75,000/- Rs.1,00,000/-
and disability
Medical expenses Rs.44,000/- Rs. 44,000/-
Pain and suffering Rs.20,000/- Rs. 30,000/-
Transportation Rs.5,000/- Rs. 6,000/-
Total Rs.1,50,000/- Rs.2,00,000/-
But awarded But awarded
Rs.1,12,500/- Rs.1,50,000/-
(Deducting 25% (Deducting 25%
owing to the owing to the
petitioner's petitioner's
negligence. negligence.
16. Accordingly, the M.A.C.M.A. is allowed in part,
enhancing the compensation amount awarded by the Tribunal from Rs.1,12,500/- to Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) with interest of 7.5% from the date of petition till the date of realization. The respondents shall deposit the said compensation amount together with interest and costs after giving due credit to the amount already deposited, if any, within a period of two months from the date of receipt of a copy of this judgment. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 21st day of February, 2023 BDR