THE HONOURABLE DR.JUSTICE G. RADHA RANI
M.A.C.M.A.Nos.776 of 2017 and 1815 of 2019
COMMON JUDGMENT:
M.A.C.M.A.776 of 2017 is filed by the injured claimant and
M.A.C.M.A.1815 of 2019 is filed by the Telangana State Road Transport
Corporation (for short "TSRTC") aggrieved by the award and decree dated
10.06.2016 in M.V.O.P.No.397 of 2014 passed by the Chairman, Motor Accidents
Claims Tribunal (for short "MACT") - cum - The Chief Judge, City Civil Court,
Hyderabad.
2. The injured claimant filed a claim petition under Section 166 of the Motor
Vehicles Act claiming compensation of Rs.10,00,000/- for the injuries sustained by
her in a motor vehicle accident. She stated that she was working as a labour and
was earning Rs.8,000/- per month. She was having husband and three (03) minor
children. On 06.11.2013, she along with her colony people came to
Brahmanapally Village by TATA RX pick up vehicle bearing No.AP-29-V-7093
for plucking cotton. After attending the labour work at Brahmanapally, while they
were returning in the same auto to Hyderabad and when reached the outskirts of
Gunagal Village, Yacharam Mandal, Rangareddy District, at about 06:00 PM, the
2
Dr.GRR, J
macma_776_2017 &
macma_1815_2019
driver of an APSRTC bus bearing No.AP-28-Z-4238 of Devarakonda Depot
proceeding in the same direction towards Hyderabad side drove the bus in a rash
and negligent manner with high speed and hit the auto. Due to which, the claimant
along with other occupants sustained injuries. Immediately after the accident, the
claimant was shifted to Ankith Multi Specialty Hospital, Santosh Nagar,
Hyderabad in 108 Ambulance. Police of PS Yacharam, Cyberabad registered a
case in Crime No.193 of 2013 against the driver of the RTC bus bearing No.AP-
28-Z-4238 under Section 338 of IPC.
3. She further submitted that her husband was suffering with Asthma and she
was the main earning member in her family. She was doing the entire domestic
work besides labour work. Due to the accident, her middle finger was amputated
and she sustained fractures of other fingers of right hand, as such she was not able
to do labour work. Her right hand ring finger was completely cut and fell down on
the road. The doctors did surgery and put it in the same position temporarily. But
due to the amputation and fractures of right hand fingers, she was unable to do any
household work or attend to manual labour work and sustained 100% functional
disability. She sustained pain and suffering due to the amputation and fractures of
right hand fingers, incurred huge expenditure towards her treatment, transportation,
extra nourishment, etc. She became permanently disabled and claimed
3
Dr.GRR, J
macma_776_2017 &
macma_1815_2019
compensation from respondents 1 and 2, the Depot Manager of Devarakonda
Depot and the Managing Director of APSRTC (TSRTC).
4. The respondents 1 and 2 filed counter and called for strict proof of the petition averments with regard to age, income, occupation, etc., of the petitioner and that the accident was due to the rash and negligent driving of the driver of the RTC bus bearing No.AP-28-Z-4238 of Devarakonda Depot. They further contended that the compensation of Rs.10,00,000/- claimed was highly excessive, un-reasonable and disproportionate and prayed to dismiss the petition.
5. Basing on the said pleadings, the trial court framed the issues as follows:
i) Whether the pleaded accident had occurred resulting in injuries to the petitioner, M.Tulasi due to the rash and negligent driving of the RTC bus bearing No.AP-28-Z-4238 by its driver?
ii) Whether the petitioner is entitled to any compensation and, if so, at what quantum and what is the liability of the respondents?
iii) To what relief?
6. Before the Tribunal, the claimant examined herself as PW.1 and got examined the doctor who treated her at Ankith Hospital as PW.2, the Billing Manager of Ankith Hospital as PW.3 and the doctor who issued the disability certificate as PW.4. Exs.A1 to A8 were marked on her behalf.
7. No oral or documentary evidence was adduced by the respondents. 4
Dr.GRR, J macma_776_2017 & macma_1815_2019
8. On considering the oral and documentary evidence on record, the Tribunal observed that there was no pleading by the respondents with regard to no negligence on the part of the driver of the RTC bus and only a suggestion was given to PW.1. On considering the settled principle of law, that any amount of evidence without pleadings could not be looked into and also considering that the respondents failed to examine the driver or conductor of the RTC bus and failed to adduce any rebuttal evidence, considering the evidence of PW.1 which was supported by the documentary evidence, i.e. the certified copy of the FIR and the charge-sheet marked as Exs.A1 and A2, held issue No.1 in favour of the petitioner holding that the accident was due to the rash and negligent driving of the driver of the RTC bus bearing No.AP-28-Z-4238.
9. With regard to the quantum of compensation, the Tribunal considered the age of the claimant as 31 years, her income as Rs.4,500/- per month, applied multiplier "16" and had taken her functional disability as 100% and assessed the loss of income due to the disability sustained by her as Rs.8,64,000/-. The Tribunal awarded an amount of Rs.48,177/- (Rs.19,000/- + Rs.29,177/-) towards medical expenses, Rs.2,000 towards transportation, Rs.6,000/- towards extra nourishment, Rs.1,000/- towards damage for clothing, Rs.10,000/- towards pain and suffering and in all awarded an amount of Rs.9,31,000/- as against her claim of 5 Dr.GRR, J macma_776_2017 & macma_1815_2019 Rs.10,00,000/- with interest @ 9 % per annum from the date of petition till the date of deposit and held the respondents 1 and 2 vicariously liable for the acts of the driver.
10. Aggrieved by the said award and decree, the injured claimant as well as the RTC authorities preferred these appeals.The injured claimant filed I.A.No.2 of 2017 for enhancement of claim from Rs.10,00,000/- to Rs.20,00,000/- along with the appeal and the same was allowed.
11. The contention of the claimant was that the Tribunal ought to have considered the monthly income of the claimant as Rs.8,000/- per month as claimed by her instead of Rs.4,500/- per month. No future prospects were awarded. Only meager amounts were awarded towards transportation, extra nourishment, pain and suffering and prayed to enhance the amount awarded by the Tribunal.
12. The contention of the learned Standing Counsel for the RTC authorities was that the Tribunal committed irregularity in holding that there was no contributory negligence on the part of the driver of the TATA RX pick up vehicle bearing No.AP-29-V-7093. No issue was framed by the Tribunal in the said regard. The Tribunal ought to have dismissed the claim petition for non-joinder of necessary parties i.e., the owner and insurer of the TATA RX pick up vehicle to the claim 6 Dr.GRR, J macma_776_2017 & macma_1815_2019 petition. Without there being any acceptable evidence on record, the Tribunal committed irregularity in holding that the accident occurred due to the rash and negligent driving of the driver of the RTC bus bearing No.AP-28-Z-4238. The Tribunal erred in taking the income of the injured claimant as Rs.4,500/- per month instead of taking notional income as Rs.3,000/- per month and erred in applying multiplier "16" by taking the age of the injured as 31 years basing on Exs.A1 and A2 which would not reflect the correct age of the injured claimant. The Tribunal erred in taking the disability at 100%, though the evidence of PW.4 would disclose that she sustained only 40% disability. The disability certificate marked under Ex.A7 was not issued by the Medical Board. PW.4, the doctor who issued the disability certificate Ex.A7 was not a treated doctor. The Tribunal erred in awarding Rs.29,177/- towards medical expenses though the evidence of PW.3 and Ex.A6 would disclose that only Rs.19,000/- was incurred towards the treatment. The Tribunal erred in granting interest @ 9 % per annum. The compensation awarded under all heads and rate of interest and costs awarded by the Tribunal was excessive and not in accordance with principles of law and prayed to allow the appeal filed by them in M.A.C.M.A.1815 of 2019.
13. Heard the learned counsel for the injured claimant and the learned Standing Counsel for TSRTC.
7
Dr.GRR, J macma_776_2017 & macma_1815_2019
14. Though the RTC authorities contended that the Tribunal failed to frame an issue with regard to the contributory negligence on the part of the driver of the TATA RX pick up vehicle bearing No.AP-29-V-7093, the counter filed by them would not disclose raising any contention about the negligence on the part of the driver of the TATA RX pick up vehicle. No additional counter was even filed by the RTC authorities after going through the documentary evidence, i.e. the charge- sheet filed by the Police against both the drivers of the RTC bus as well as the driver of the Tata RX pick up vehicle marked under Ex.A2. The issues will be framed only basing on the pleadings. Without there being any pleading, no issue could be framed with regard to the contributory negligence on the part of the driver of the TATA RX pick up vehicle bearing No.AP-29-V-7093.
15. The claimant examined herself as PW.1 and she stated that the accident was due to the rash and negligent driving of the driver of the RTC bus bearing No.AP- 28-Z-4238, due to which, she sustained grievous injuries. Except for a suggestion which was denied by the witness, nothing was elicited in the cross-examination of PW.1 to prove that the accident occurred due to the rash and negligent driving of the TATA RX pick up vehicle and that there was no negligence on the part of the RTC bus driver. The complaint was registered basing on the statement of the injured claimant recorded by the SI of Police of PS Yacharam on 06.11.2013 at 8 Dr.GRR, J macma_776_2017 & macma_1815_2019 11:45 PM at Balaji Hospital, Sagar Ring Road. The complaint would disclose that while the injured claimant along with others was travelling in the TATA RX pickup vehicle bearing No.AP-29-V-7093 at about 06:00 PM, when they reached near CRIDA, Gunagal Forest on Sagar High-Way, a lorry was stopped on the road which was under repair. The van driver saw the lorry when he came close to the lorry and applied sudden brakes and took a right turn. At that time, the RTC bus bearing No.AP-28-Z-4238 which was very close to the van, hit the van from behind, due to which she along with others sustained injuries and was shifted to the hospital for treatment.
16. The charge-sheet filed by the Police marked under Ex.A2 would disclose that the Police filed charge-sheet against both the driver of the RTC bus bearing No.AP-28-Z-4238 and also the driver of the TATA RX pick up vehicle bearing No.AP-29-V-7093. In the charge-sheet, the Police specified that their investigation revealed that on 06.11.2013 in the evening hours at 06:00 PM, when TATA RX pick up van bearing No.AP-29-V-7093 was returning to Hyderabad from Brahmanapally Village, Nalgonda District near CRIDA at Gunagal Village, a lorry bearing No.AP-12-V-2512 was stopped on the road due to mechanical break down one hour before the accident. It stopped on the road partially with some precautions. When the pick up van reached near CRIDA, Hyderabad at 41 9 Dr.GRR, J macma_776_2017 & macma_1815_2019 milestone on Sagar Highway, the van driver saw the lorry when he reached very close to the lorry and applied sudden brake and slowly hit the under-repaired lorry due to which, the injured caught the door rod to balance herself. At the same time, the RTC bus bearing No.AP-28-Z-4238, driven by its driver in a rash and negligent manner kept his bus closely to the van and hit the van from behind, due to which, the complainant's right hand got bleeding injuries and some other persons also sustained injuries, as such, filed charge-sheet against both the drivers under Section 338 of IPC.
17. As rightly observed by the Tribunal, the respondents failed to plead or examine the driver of the RTC bus to prove that there was no negligence on the part of the driver and the accident was solely due to the negligence of the driver of the pick up van. In view of the substantial evidence of PW.1 which was supported by Exs.A1 and A2 and in the absence of any rebuttal evidence adduced by the respondents - RTC authorities, this Court does not find any illegality or impropriety in the observation of the Tribunal on this aspect, holding that the accident was due to the rash and negligent driving of the driver of the RTC bus bearing No.AP-28-Z-4238.
18. With regard to the quantum of compensation, the claimant in her evidence as PW.1 stated that she used to attend labour work and earn Rs.8,000/- per month 10 Dr.GRR, J macma_776_2017 & macma_1815_2019 prior to the accident and she was also rendering services as a domestic maid. Due to the amputation of middle finger of right hand and fracture of right hand fingers, she discontinued the labour work and was also unable to do the domestic household works or any other work and suffered with loss of total earning power and permanent disability.
19. In support of her evidence, she got examined the doctor who treated her at Ankith Hospital as PW.2. PW.2 stated that he was a practicing General Surgeon and Proprietor of Ankith Multi Speciality Hospital, Santosh Nagar, Hyderabad. The claimant Smt.M.Tulasi was admitted in their hospital with history of RTA on 07.11.2013 vide in-patient No.7746. She sustained crush injury of right middle finger, fracture of right ring finger, fracture of proximal phalanx of index finger and an operation was performed on her and her right middle finger was amputated. He stated that the said injuries were grievous in nature and due to the said injuries, she could not do any work with her right hand throughout her remaining life. Because of amputation, she lost her right hand grip.
20. She also got examined the Orthopedic Surgeon (Proprietor of Rajya Laxmi Hospital, Vanasthalipuram, Hyderabad) as PW.4. PW.4 had issued the disability certificate marked under Ex.A7. PW.4 stated that he verified the previous medical records of the claimant and found that she sustained amputation of right middle 11 Dr.GRR, J macma_776_2017 & macma_1815_2019 finger up to mid proximal phalanx, grip loss and crush injury of right ring finger. He stated that the said injuries were grievous in nature. The patient was having difficulty in working with right hand and difficulty in lifting weights and assessed the physical disability as 40% partial and permanent. He stated that the patient was unable to do her normal activities with her right hand. She was having grip loss due to amputation of middle finger and fracture of index finger. She could not do any work with her right hand throughout her remaining life time. Nothing worthwhile was elicited in the cross-examination of PWs.2 and 4 to disbelieve their evidence. The evidence of PWs.2 and 4 was supported by the documentary evidence i.e. Ex.A3, the medico legal certificate issued by the Medical Officer of Ankith Multi Specialty Hospital, Ex.A4, discharge card issued by the same Hospital, the medical certificate issued by the Hospital as Ex.A5, the prescriptions, medical bills and the disability certificate marked as Exs.A6 and A7.
21. The Tribunal observed that since PW.1 was a labour and lost three (03) fingers and lost her grip to right hand and could not lift weights and carry out agricultural works, though the physical disability was 40%, she was suffering with 100% functional disability. This Court does not find fault with such observation of the Tribunal which was based upon the evidence of PWs.1, 2 and 4. 12
Dr.GRR, J macma_776_2017 & macma_1815_2019
22. In the absence of any reliable proof adduced by the claimant with regard to her age, though the documents marked under Exs.A3 to A5 were disclosing the age of the claimant as 30 years, considering Exs.A1 and A2, the Tribunal considered the age of the claimant as 31 years. In the absence of any reliable proof as to the income of the claimant, the Tribunal considered her income as Rs.4,500/- per month by taking into consideration, the Minimum Wages Act applicable to the agricultural labour. This Court does not find fault with the observations of the Tribunal with regard to her age and income. However, as no future prospects were considered by the Tribunal, considering the judgments of the Hon'ble Apex Court in New India Assurance Company Limited v. Gajender Yadav and Others 1 and Lalan D. @ Lal and Another v. The Oriental Insurance Company Limited 2, wherein it was held that the High Court erred in not awarding future prospects while considering the permanent disability of a skilled construction worker who was not under permanent role. By applying methodology in Parminder Singh v. New India Assurance Company Limited and Others 3 , wherein a Bench comprising of two Judges, found 50% of the income of the victim was to be assessed as loss of future prospects and also considering its earlier 1 (2018) 11 SCC 630 2 (2020) 9 SCC 805 3 (2019) 7 SCC 217 13 Dr.GRR, J macma_776_2017 & macma_1815_2019 judgment in Sanjay Verma v. Haryana Road Ways 4 and as the Constitution Bench judgment of the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi and Others 5directs an addition of 40% to be added for self-employed persons when there was no material to prove that the victims had a permanent job, for the persons aged below 40 years, as such, the income of the claimant can be assessed as Rs.4,500/- + Rs.1800/- (40% of Rs.4,500/-) = Rs.6,300/-.
23. As the age of the claimant is considered as 31 years, multiplier "16" is considered as appropriate as per the judgment of the Hon'ble Apex Court in Sarla Verma (Smt.) & Others v. Delhi Transport Corporation 6. Hence, the loss of future prospects due to the permanent disability sustained by the claimant can be considered as Rs.6,300 x 12 x 16 x 100% = Rs.12,09,600/-.
24. As loss of future earnings is considered as 100%, no amount is awarded towards loss of earnings during the period of treatment.
25. The evidence of PW.3, the Billing Manager of Ankith Multi Specialty Hospital would disclose that the claimant incurred an amount of Rs.19,000/- under Ex.A6. Ex.A6 would disclose that the claimant was admitted as in-patient in the 4 (2014)3 SCC 210 5 (2017) 16 SCC 680 6 (2009) 6 SCC 121 14 Dr.GRR, J macma_776_2017 & macma_1815_2019 said Hospital for one day i.e. from 07.11.2013 to 08.11.2013 and she was charged an amount of Rs.23,200/- and after deducting an advance of Rs.4,000/-, she was stated to be due an amount of Rs.19,200/- out of this Rs.19,200/- PW.6 stated that a concession of Rs.4,200/- was given and she was charged to pay only Rs.15,000/-. As such, the petitioner was entitled to an amount of Rs.19,000/- only under Ex.A6. The petitioner had also filed certain medical bills and prescriptions marked under Ex.A6 to show that she incurred some amounts apart from the amount of Rs.19,000/-. As the total amount of the medical bills including the above amount of Rs.19,000/- is stated to be Rs.24,177/-, the Tribunal erred in awarding Rs.48,177/- (Rs.19,000/- + Rs.29,177/-) towards medical expenses. But the medical expenses could be awarded at Rs.25,000/-, which was the actual amount incurred by her, which was supported by the evidence of PW.3 and Ex.A6.
26. The Tribunal awarded only an amount of Rs.10,000/- towards pain and suffering, Rs.2,000/- towards transportation which appeared to be meager. As the injured claimant is assessed to have sustained 100% functional disability and as she was unable to lift weights or unable to do any work with her hand due to loss of grip and considering the financial circumstances in which her family was placed and being the only bread earner of her family with three (03) minor children, she might have sustained a lot of pain and suffering, for which, it is considered fit to 15 Dr.GRR, J macma_776_2017 & macma_1815_2019 award an amount of Rs.50,000/- under this head and Rs.25,000/- towards loss of amenities. It is also considered fit to award an amount of Rs.5,000/- towards transportation and Rs.5,000/- towards attendant charges. As an amount of Rs.6,000/- is awarded towards extra nourishment and Rs.1,000/- towards damage of clothing by the Tribunal, the same is considered as reasonable which requires no interference.
27. Hence, the injured claimant is entitled to compensation under various heads as follows:
S.No. Conventional Heads CompensationAwarded
1. Loss of future prospects due to Rs.12,09,600/-
permanent disability sustained by the
injured claimant
2. Pain and Suffering Rs.50,000/-
3. Loss of amenities Rs.25,000/-
4. Medical Expenses Rs.25,000/-
5. Extra nourishment Rs.6,000/-
6. Transportation Rs.5,000/-
7. Attendant Charges Rs.5,000/-
8. Damage to Clothing Rs.1,000/-
Total: Rs.13,26,600/-
28. As such, the injured claimant is entitled to a compensation of Rs.13,26,600/- .
29. In the result, M.A.C.M.A.No.1815 of 2019 filed by TSRTC is dismissed and M.A.C.M.A.No.776 of 2017 filed by the injured claimant is allowed enhancing the 16 Dr.GRR, J macma_776_2017 & macma_1815_2019 compensation from Rs.9,31,000/- awarded by the Tribunal to Rs.13,26,600/-. The enhanced compensation should carry interest @ 7.5 % per annum. The Corporation is directed to deposit the said amount, after deducting the amount deposited if any, within a period of eight (08) weeks from the date of receipt of a copy of this Judgment and on such deposit, the claimant is permitted to withdraw the entire amount.
As a sequel, miscellaneous applications pending in these appeals, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 4th September, 2023 Nsk.