Telangana High Court
Ap State Road Transport Corporation vs E.Srinivas Goud , Srinivas And Anr on 8 April, 2024
• THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
• M.A.C.M.A.No.137 of 2017
• AND
• M.A.C.M.A.No.2107 of 2017
• COMMON JUDGMENT:
1. Aggrieved by the order dated 08.11.2016 passed in
M.V.O.P.No.300 of 2014, on the file of the Principal District Judge-
cum-Motor Accidents Claims Tribunal, Mahabubnagar, (for short,
'the Tribunal'), M.A.C.M.A.137 of 2017 is filed by the
Appellant/claimant seeking to allow the Appeal by enhancing the
compensation awarded by the Tribunal. The 1st respondent in O.P.
filed M.A.C.M.A.No.2107 of 2017 seeking to set-aside the order passed by the learned Tribunal. Since both the appeals arise out of the common order passed in M.V.O.P.No.300 of 2014, dated 08.11.2016, they have been dealt with together and being disposed of by way of this common judgment.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Tribunal.
3. The facts of the case in brief are that the petitioner filed a claim petition under Section 166 of Motor Vehicles Act seeking compensation of Rs.6,50,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 13.12.2012. It is stated by the petitioner that on 13.12.2012, at about 3.30 hours, when 2 MGP,J Macma Nos.137 and 2107 of 2017 the petitioner was proceeding on his motor cycle bearing No.AP- 28AV-6231 from Hyderabad to Shadnagar and when reached the limits of Nandigama near Ayyappa Swamy Temple on NH-7, at that time, one APSRTC Bus Bearing No.AP-29Z-334, came in opposite direction in a high speed, in wrong side and dashed the petitioner's motorcycle. As a result, the petitioner sustained the following injuries i.e., (1) Grade-I compound comminuted fracture of the lower third of right femur, (2) Comminuted fracture of lower pole of right patella, (3) Fracture lower third of redious DRIJ Disruption, (4) Closed manipulation and reduction of left shoulder dislocation, (5) Dislocation of the left shoulder, (6) C.R.I.F. with intramodular nail of right femur and multiple injuries all over the body. Immediately after the accident, the petitioner was shifted to area Hospital, Shadnagar in '108' Ambulance. On the advice of Doctor, he was admitted as inpatient in Apollo Hospital, Hyderabad, from 13.12.2012 to 18.12.2012 and underwent surgery and spent total amount of Rs.3,00,000/- towards treatment and still taking treatment in different hospitals. Police, Kothur Police Station, registered a case in Crime No.176 of 2012 under Section 338 IPC against the driver of RTC bus. It is stated by the petitioner that prior to accident, he was hale and healthy and was earning Rs.12,000/- per month as Electrician. Due to the said accident, he sustained permanent disability and deprived of his earnings and 3 MGP,J Macma Nos.137 and 2107 of 2017 hence, claimed compensation of Rs.6,50,000/- against the respondents.
4. Respondent No.1/APSRTC filed its counter denying the averments made in the claim petition including, age, income, medical expenses incurred by the petitioner, involvement of RTC Bus bearing No.AP-29Z-334, occurrence of accident and further stated that there was no negligence on part of the driver of the bus and that the accident occurred due to the rash and negligent driving of the petitioner at the time of accident and that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the claim against it.
5. Based on the above pleadings, the learned Tribunal had framed the following issues:-
1. Whether the accident occurred due to rash and negligent driving of the driver of APSRTC bus bearing No.AP-29Z-334?
2. Whether the petitioner is entitled for compensation?
If so, to what amount?
3. To what relief?
6. Before the Tribunal, on behalf of the petitioner, PWs 1 to 3 were examined and Exs.A1 to A12 were marked. On behalf of respondent No.1, no oral or documentary evidence was adduced. 4
MGP,J Macma Nos.137 and 2107 of 2017
7. After considering the evidence and documents available on record, the learned Tribunal had partly allowed the claim petition of the petitioner awarding an amount of Rs.1,71,173/- as compensation along with interest @ 9% per annum from the date of petition till the date of deposit payable by respondent No.1 alone as the claim against Respondent No.2 was dismissed.
8. Aggrieved by the same, M.A.C.M.A.137 of 2017 is filed by the claim petitioner seeking for enhancement of compensation and M.A.C.M.A.No.2107 of 2017 is filed by Respondent No.1-RTC seeking to set-aside the order of the learned Tribunal.
9. Heard the submission of the learned counsel for the appellant/claim petitioner as well as learned Standing Counsel for Respondent No.1/RTC.
10. The contention of the learned counsel for appellant is that the learned Tribunal erred in deducting amount towards medical expenses as the same was paid through Medi-claim policy; erred in not granting attendant charges during the period of treatment and rest of the period and also erred in not taking into consideration the loss of income from avocation due to the injuries sustained by him and hence, prayed to allow the appeal by enhancing the compensation amount.
5
MGP,J Macma Nos.137 and 2107 of 2017
11. On the other hand, the contention of the learned counsel for Respondent No.1-RTC is that the learned Tribunal erred in awarding excess interest @ 9% per annum and came to a wrong conclusion that the accident occurred due to the rash and negligent driving of the driver of the RTC bus in the absence of non-examination of any co-passenger of the bus and hence prayed to set-aside the same.
12. Now the point that emerge for consideration is, Whether the order passed by the learned Tribunal requires interference of this Court?
Point:-
13. This Court has perused the evidence and documents available on record. The petitioner himself was examined as PW1. He reiterated the contents made in the claim petition and deposed about the manner of accident and got marked Exs.A1 to A12 on his behalf. In his cross-examination, he deposed that he claimed some amount from Medi Claim Company as he had taken Medical Insurance Policy while working. He admitted that he did not file any document to show that he was working as Electrician prior to the accident and was earning Rs.12,000/- per month. He denied the suggestion that he took treatment under Arogya Sree Scheme. PW1, in support of his contentions, got examined PW2, who is an 6 MGP,J Macma Nos.137 and 2107 of 2017 Orthopaedic Surgeon in Apollo Hospital. He deposed that on 13.12.2012, PW1 was admitted in their hospital on account of injuries sustained in a road traffic accident which are as follows:-
(1) Dislocation of the left shoulder, (2) Grade-I Compound comminuted fracture of the lower third of right femur, (3) Comminuted fracture of lower pole of right patella, (4) Fracture of lower third of radius with DRUJ disruption procedure. He said that the injuries are grievous in nature and all the above injuries were treated with operation. He stated that the injured had metal wires in his right wrist which were removed after six weeks and that he still had a metal rod in his right thigh. He had absolute bed rest for nearly 3 months and it took few months to walk with a little limp and pain. The estimated cost of removal of metal rod from the right thigh is about Rs.50,000/-. He stated that the petitioner still has a limp in his walking with pain and assessed disability of 15%. He stated that Ex.A7 is the medical bill and Ex.A10 is the Discharge Summary given by Apollo Hospital.
14. PW3, who is working as Assistant Branch Manager in Prudential Systems Technologies Private Limited, Gachibowli, Hyderabad, was examined in order to prove the income of the petitioner. He deposed that the petitioner worked in their office as Electrical Engineer from 2010 to December 2012. Ex.A11 are the 7 MGP,J Macma Nos.137 and 2107 of 2017 computer generated pay-slips issued by their office and as per Ex.A11, the salary of the petitioner was mentioned Rs.9,045/- per month. During his cross-examination, he denied the suggestion that the petitioner can take treatment in ESI hospital as he had paid premium to ESI.
15. It is pertinent to mention that Ex.A1-FIR shows that P.S.Kottur registered a case in Crime No.176 of 2012 under Section 337 IPC against the driver of the APSRTC bus, took up investigation and laid charge sheet under Ex.A2. Ex.A3 is the Wound Certificate issued in the name of the petitioner by Civil Assistant Surgeon, Community Health Centre, Shadnagar, Ex.A4 is the outpatient ticket issued by Vaidhya Vidhan parishad, CHC, Shadnagar. Ex.A5 is the X-Ray Knee (Right) AP and LAT report issued by Apollo Hospitals, dated 15.12.2012. Ex.A6 is the report of MDCT SCAN Brain without contrast issued by Apollo Hospitals dated 13.12.2012. Ex.A7 is the inpatient bill issued by Apollo Hospital, dated 18.12.2012. Ex.A8 is the bunch of medical bills. Ex.A9 are the investigation reports nine in number. Ex.A10 is the Discharge Summary issued by Department of Orthopaedics in Apollo Hospitals, Hyderabad. Ex.A11 are the computer generated pay slips for the months of October and November, 2012 issued by Prudential Systems Technologies Private Limited in favour of the 8 MGP,J Macma Nos.137 and 2107 of 2017 petitioner. Ex.A12 is the Summary of accounts of petitioner in ICICI Bank.
16. The above oral and documentary evidence shows that as per Ex.A1, Police, Kottur Police Station, registered a case in Crime No.176 of 2012, took up investigation and filed charge sheet under Ex.A2. Exs.A3 to A8 shows about the injuries and treatment undergone by the petitioner. Therefore, it is clear that the accident occurred due to the rash and negligent driving of the driver of APSRTC Bus Bearing No.AP-29Z-334, due to which, the petitioner sustained injuries and had undergone treatment.
17. It is the further contention of the learned counsel for respondent No.1/APSRTC that the learned Tribunal came to a wrong conclusion that the accident occurred due to rash and negligent driving of the driver of RTC Bus Bearing No.AP-29Z-334 in the absence of non-examination of co-passenger of the bus.
18. In this regard, it is pertinent to refer to the decision of the Hon'ble Supreme Court in a case between Sunita & Ors and Rajasthan State Road Transport Corporation & Anr, reported in Civil Appeal No.1665 of 2019, wherein it was held that "The approach in examining the evidence in accident claim cases is not to find fault with non examination of some "best" eye witness in the case but to analyse the 9 MGP,J Macma Nos.137 and 2107 of 2017 evidence already on record to ascertain whether that is sufficient to answer the matters in issue on the touchstone of preponderance of probability."
19. The Hon'ble Supreme Court has observed that non examination of 'best witness' in Motor Accident Claim cases is not fatal. The bench comprising of Hon'ble Sri Justice AM Khanwilkar and Hon'ble Sri Justice Ajay Rastogi observed that a hyper technical and trivial approach should not be adopted in a case for compensation under the Act.
20. In the present case, the evidence of PWs 1 to 3 coupled with the documentary evidence filed under Ex.A1 to A12 clearly establish that the alleged accident occurred due to rash and negligent driving of the driver of RTC Bus bearing No.AP-29Z-334 which came in opposite direction in a high speed and dashed against the petitioner's motor cycle. Hence, the contention of the respondent/RTC that the learned Tribunal erred in non- examination of co-passenger of the bus, is unsustainable.
21. So far as awarding of compensation is concerned, the learned Tribunal, by taking into consideration Ex.A11-Pay slips issued to the petitioner by Prudential Systems Technologies Private Limited, Hyderabad, fixed the monthly income of the petitioner as Rs.9,045/- and calculated loss of earnings for five months which comes to Rs.45,225/- which needs no interference by this Court. 10
MGP,J Macma Nos.137 and 2107 of 2017
22. The only aspect which this Court intends to deal with is with regard to awarding medical expenses under mediclaim policy. It is the contention of the learned counsel for the claim petitioner that the learned Tribunal erred in not awarding medical expenses which were incurred by the petitioner based only on flimsy ground that the petitioner had paid the bills by obtaining medi-claim policy. This Court sees no force in the said contention since the said reimbursement of expenses under an independent contract of insurance has no bearing upon the claim under a statutory liability. Moreover, the claim petitioner had paid premium for purchasing the said insurance. Thus, the benefit which emanated from the said contract, cannot be adjusted against the compensation payable under the Act. In a recent judgment delivered by Bombay High Court reported in the case between Royal Sundaram Alliance Insurance Co. Ltd. Vs. Ajit Chandrakant Rakvi and Ors1, the issue of double benefit has been decided in a similar manner based on the decision of the Apex Court in Helen C.Rebello v.Maharashtra State Road Transport Corporation and Another 2. It was held by the Court that the nature of the proceedings under the Act is of relevance and a claim petition for compensation in regard to motor accident filed by the 1 2020 ACJ 691 2 1999 ACJ 10 (SC) 11 MGP,J Macma Nos.137 and 2107 of 2017 injured is neither a suit nor an adversarial lis in the traditional sense. Thus, the benefits emanating from an independent and unconnected contract of insurance cannot be considered by the Tribunal as it besets with variables rooted in contract.
23. Therefore, in view of the above discussion and also based on the above decision, the petitioner is entitled for medical expenses which were claimed through Mediclaim policy. As per Ex.A7, the total amount incurred by the petitioner is Rs.2,05,093/-. Out of the said amount, the petitioner was given authorization for an amount of Rs.1,99,145/-under Medi-claim. The petitioner is also entitled for balance of Rs.5,948/- which was paid by him through deposit. Apart from this, the learned Tribunal also awarded a sum of Rs.50,000 towards pain and suffering, Rs.50,000/- towards future medical expenses, Rs.10,000/- towards transport and Rs.10,000/- towards extra nourishment and medicine. Thus, in all, the petitioner is entitled for a total compensation of Rs.3,70,318/- which is payable by Respondent No.1 alone as Respondent No.2, who is the driver of the RTC Bus, is shown as not necessary party to the petition.
24. Insofar as the interest awarded by the Tribunal is concerned, this Court by relying upon the decision of the Hon'ble Apex Court 12 MGP,J Macma Nos.137 and 2107 of 2017 in Rajesh and others v. Rajbir Singh and others 3 reduces the rate of interest awarded by the Tribunal from 9% to 7.5% per annum.
25. In the result, M.A.C.M.A.No.137 of 2017, filed by the claimant, is partly allowed by enhancing the compensation awarded by the Tribunal from Rs.1,71,173/- to Rs.3,70,318/-. The enhanced amount shall carry interest @ 7.5% p.a. from the date of petition till the date of realization payable by Respondent No.1 within a period of one month from the date of receipt of a copy of this order. On such deposit, the appellant is entitled to withdraw the same without furnishing any security.
26. Also, M.A.C.M.A.No.2107 of 2017, filed by Appellant/RTC, is partly allowed reducing the rate of interest awarded by the Tribunal from 9% to 7.5% per annum. In both the appeals, there shall be no order as to costs.
27. Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Dt.08.04.2024 ysk 3 2013 ACJ 1403 = 2013 (4) ALT 35